Erosion Control, or Coney Island South?

Daily Journal

For decades, Florida has been working to implement a plan to preserve and restore its white sand beaches, which regularly suffer pummelings from hurricanes. The plan appears, on its face, to be a victory for all. After all, who doesn't want bigger, better beaches?

It turns out that some beachfront property owners don't. In fact, they have sued, claiming the beach restoration program constitutes a taking of their property. And the owners' claims are so novel and weighty that the United States Supreme Court has agreed to hear them.

The case encompasses many intriguing aspects, but to understand it requires delving into the morass of peculiarly arcane aspects of real property law including the concept of littoral rights and the legal implications of accretion and avulsion, which control where the property line of beachfront property falls as the sands shift and dictate what this means in terms of the owners' rights to touch the water.

How one gets from this complicated area of law to "Coney Island South" is the point of Stop the Beach Renourishment v. Florida, which the U.S. Supreme Court heard on Dec. 2, 2009. There, several beachfront landowners objected when Florida's beach restoration program came to town. Florida added mountains of sand to the beach, moving the mean high tide line about 75 feet seaward. The twist is that Florida asserts that this new, pristine white-sand beach belongs to the public, and that the owners whose properties touched the water at high tide now find their properties ending 75 feet from the surf. This resulted from a provision of the restoration program that in effect changed the owners' boundary from one that could vary with the shifting sands to one set in stone at a static "erosion control line." According to Florida, from that time forward, when the sand shifted, a corresponding change to the private property boundary would not occur.

On first glance, all of this may seem quite unfair. How could a beach restoration program effect a change in the owners' deeds, especially where such change resulted in the owners' no longer owning to the water's edge?

However, viewed from the other side, Florida created the erosion control line at the existing "mean high tide line" (the existing property boundary). In other words, it did not "take" any of the owners' property. And, the new beach arose from land previously submerged - and which the state already owned. Why should the private owners get title to this new property, which Florida created using taxpayer money?

To add intrigue to an already interesting factual situation, the legal issue framed for the Supreme Court involves no run-of-the-mill takings claim. American jurisprudence is replete with cases describing when a taking occurs, and there is nothing particularly novel about deciding whether a government regulation rises to the level of a regulatory taking mandating compensation to the owner. And, it would seem that no overriding need exists for the U.S. Supreme Court to take on another such case given its limited resources. After all, how many "beachfront homes" in Nebraska are threatened with loss of sand from a hurricane?

What makes this case special is the Court's focus on whether the Florida Supreme Court effected a "judicial taking" when it ruled that Florida owned the new beach (and wasn't required to compensate the owners). The concept of a "judicial taking" has been around for more than 40 years, since former Justice Potter Stewart hypothesized in 1967 that a judicial taking could occur where a court effected "a sudden change in state law, unpredictable in terms of the relevant precedents." Since Justice Stewart issued that statement in 1967, however, no court has ever ruled that a judicial taking had occurred.

At the December 2 oral argument, it quickly became clear that at least some of the Justices feel this case may finally present the scenario Justice Stewart saw in his 1960's crystal ball. Justice Antonin Scalia came at the issue by inquiring as to how Florida can terminate the owners' littoral rights (basically the right to touch the water) without paying compensation for them: "I think it would be very strange to have a principle that all the...littoral owner gets is a right to access the water and not the right to be on the water, to have his property on the water. I every State...beachfront owners would be astounded to learn that that's the case." Justice Scalia also brushed aside the argument that the owners still have access to the water across the new public beach under provisions of the restoration program that guarantee such access. Specifically, he focused on the fact that the owners would have no control over what use gets made of the new beach, and that loss of such control would be a very big deal to those owners: "[W]hat can't happen with other littoral property is that folks can't come in and lay down beach blankets and occupy that front of your house?"

And here, finally, is where Coney Island comes into play. If the new beach is public, nothing would prevent Florida from one day seeking to convert the new beach into "Coney Island South." According to Justice Scalia, having beachfront property is "quite different from having a house behind the beach at Coney Island." Justice Samuel A. Alito raised similar concerns, wondering what would happen if Florida "wanted to attract more students who were going to the beach in Florida for spring break, and so therefore it decided it was going to create a huge beach in front of...privately owned homes." In response to Florida's claim that current law would not allow such a use, Justice Scalia was quick to note that nothing prevented Florida from changing that law, enacting, for example, "the Spring Break Act of 2010." Chief Justice John G. Roberts seemed to agree, asking: "If somebody wanted to put up a hot dog stand on this new land, would [the private owners] have the right to tell them they can't?"

But before anyone concludes that the outcome here seems simple, not all of the justices followed the lead of Justices Scalia, Alito, and Roberts. Justice Stephen G. Breyer, for example, questioned the property owners' lawyer at length about why Florida's actions didn't qualify as an avulsive event (a sudden change in the mean high tide line), which even under common law would not change the property line. Justice Breyer also focused on the fact that the restoration program did not effect any change in the owners' existing property line: "You didn't lose one inch." Justice Sonia Sotomayor appeared to agree, coming at the same issue from the other side, and focusing on the fact that Florida already owned the property that formed the new beach and could have docked boats there - or even allowed a "hot dog sit in a foot of water."

In one final unique twist, a possibility exists that the Court could end up evenly split, four-four on the issue. Justice John Paul Stevens, who happens to own some Florida beachfront property, recused himself. If the case does end up evenly split, it will create no precedent, and the Florida Supreme Court decision will stand. If the Court sides with Florida, Justice Stevens' "judicial takings" theory will likely head back into obscurity, awaiting another bizarre set of facts that may meet the standard.

But what if the Court rules in favor of the property owners? If this really is a "judicial taking," created by the Florida Supreme Court, who is liable? While the issue did not arise during oral arguments, one issue in the case is whether the judges themselves may be liable. This seems a bit of a stretch; the more realistic outcome is that the case will turn into a typical inverse condemnation case, with Florida paying just compensation to the owners. That, too, may prove interesting, as the battle would shift to the compensation due, the offsetting benefits the program creates, and how one really values littoral rights.

Rick E. Rayl is a partner at Nossaman in the firm's Eminent Domain and Valuation and Real Estate Practice Groups and an experienced trial attorney dealing with eminent domain, inverse condemnation and other real estate and business disputes. He is also editor of the blog, "California Eminent Domain Report." He can be reached at or (949) 833-7800.

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