By William W. Abbott
In an earlier case involving Takings jurisprudence, Supreme Court Justice Brennan once asked, “If a policeman must know the Constitution, then why not a planner?” Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (2010) ___ U.S. ___. Indeed, why not, and should the same question be asked of state courts? This issue came before the United States Supreme Court in the form of a submerged lands case from the State of Florida. Pursuant to Florida law, a beach front property owner has several rights. With respect to the slow addition of sand extending seaward into the ocean (accretion), the additional land belongs to the property owner. The sudden addition of land seaward (avulsion) however, belongs to the state as the owner of the submerged lands seaward of the mean high tide line. In the latter situation, the property line remains where it was prior to the avulsion. Florida law permits cities and counties to undertake beach restoration projects, typically involving placement of sand on submerged lands on the seaward side of the dividing property line. As part of that process, the State establishes the erosion control line. Once established, the common law of accretion (to increase or decrease property), no longer applies.
The City of Destin and the County of Walton applied for state approval of a beach restoration project which would add sand seaward of the historic lands. The affected property owners sued, arguing that implementation of the project would result in a taking of their common law rights of accretion and the right of their property to enjoy direct contact with the ocean. The State Court of Appeal agreed with the property owners on the takings issue, and as part of its deliberations, certified the takings issue to the Florida Supreme Court. Did the Florida statute, on its face, deprive upland owners of property rights without compensation? The Florida Supreme Court reversed, holding that the upland owner did not have vested interest in future accretions. The property owners then petitioned the United States Supreme Court arguing that the Florida Supreme Court’s judicial decision resulted in a taking.
The Supreme Court’s decision reflects that the Court does not speak with one voice regarding Takings. The Justices did agree that under Florida law, the law on avulsion remained unchanged. The rights of the owner were subject to the paramount rights of the state to fill submerged lands. Thus, in circumstances in which the State itself was the cause of the avulsion, no private property rights were taken. As this was the standing law in Florida, the Florida State Supreme Court’s decision could not have resulted in a taking.
Justice Scalia was joined by three justices, Chief Justice, Thomas and Justice Alito in Parts II and III of the opinion. In Parts II and III, the justices concluded that a Takings can occur as a result action by any branch of the government, including the judiciary. Justice Kennedy and Justice Sotomayor concluded that as Florida had not taken any property rights, the Supreme Court need not address the issue of a judicial takings. Justice Breyer, with Justice Ginsburg generally concurred that the issue of judicial takings need not be addressed as the case had been disposed of on other grounds. Justice Stevens did not participate in the decision.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.