Florida property owners can’t stop the beach renourishment
on Jun 20, 2010 at 10:15 pm
On Thursday, the Supreme Court held in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (No. 08-1151) that the land under the water at a Florida shoreline continued to belong to the state even after the state added new sand, extending the beach and interrupting property owners’ exclusive access to the water. By a vote of eight to zero, the Court upheld a decision by the Florida Supreme Court, which had held that the state’s ownership of newly created land at the shoreline was not an unconstitutional taking. [Additional SCOTUSblog coverage of the case is available on the SCOTUSwiki page linked above.]
Under Florida law, all beachfront property seaward of the median high-water mark belongs to the state, while the owners of beachfront property own the land between that line and their homes.  In 2003, two Florida cities sought to deposit new sand along the shoreline of their beaches, extending the beaches into the sea by seventy-five feet. The new land would belong to the state, depriving the owners of adjacent property of their exclusive access to the water, as well as ownership of any new land subsequently added by gradual natural change. A group of property owners went to state court, arguing that the actions violated the Takings Clause of the Constitution. The Florida Supreme Court rejected that argument, and the Supreme Court agreed.
In an opinion by Justice Scalia, all of the Justices (with the exception of Justice Stevens, who did not participate because he owns a beachfront condo in Florida) agreed that the Florida Supreme Court’s decision did not constitute a taking. Under Florida law, the Court reasoned, the property owners did not have any right to the filled-in land: the state has the right to fill in its own seabed, and any previously submerged land that is exposed by a sudden event belongs to the state – even if the state caused the exposure and it disrupts the property owner’s contact with the water.
Four members of the Court – Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito – agreed that there is such a thing as a judicial taking. In the view of those Justices, if something was once an established property right but a court indicates that the right no longer exists, the court has unconstitutionally “taken†the property. The plurality reasoned that the Takings Clause is concerned with the act of taking property, rather than with the branch of government which effects the taking.
In an opinion joined by Justice Sotomayor, Justice Kennedy concurred in part and concurred in the judgment. Justice Breyer also filed a concurring opinion, which was joined by Justice Ginsburg. Those Justices emphasized that because the Florida Supreme Court’s decision did not constitute a taking, there was no reason to resolve the broader question of whether a judicial decision can ever constitute a taking.
