Featured Case

Property Owners’ Riparian Rights Should Be Respected

Stop the Beach Renourishment, Inc. v. Florida DEP

Contact: James S. Burling

Status: Adverse decision issued by the U.S. Supreme Court on June 17, 2010.

Summary:
Under Florida law, waterfront landowners’ titles extend to the ordinary high water mark and include several rights such as access and view of the water, title to accretions, and the right to have the property remain in contact with the water.  These rights are protected property rights under Florida case law.  The State’s beach erosion control law seeks to upset this scheme, however.  Beaches that are designated as “critically eroded” (and there are no standards for that designation) qualify for replenishment under the erosion control law.  Once included in the program, the ordinary high water mark is fixed, and any future accretions will belong to the state.  Access to the water is cut off by the newly created public land and the right to have the property remain in contact with the water is lost.

The City of Destin and Walton County, Florida, filed an application for a beach restoration project under this law.  This application was challenged by two property owner groups (Save Our Beaches, Inc. and Stop the Beach Renourishment, Inc.) who argued that the beach erosion control law effects a taking of property without compensation.  The property owners prevailed in their challenge before the Court of Appeal and the Florida Supreme Court granted review. In late 2008, the Florida Supreme Court overturned the decision and ruled against the property owners. The owners appealed to the U.S. Surpeme Court, and PLF supported the petitioner as amicus curiae in the High Court. The landowners argued that the decision of the Florida Supreme Court was a "judicial taking" because the court eliminated important Common law rights by changing the definition of waterfront property.

The U.S. Supreme Court upheld the Florida decision. In ruling against the landowners, the Court said that the sudden man-made addition of new sand did not change the property line, and that the Florida Supreme Court had not changed the definition of waterfront property. Four members of the Court, however, did say that if the Florida Supreme Court had changed the definition of property, that might be "judicial taking." Two other Justices said such an action by a state court might be a violation of the Due Process Clause.