Claim of 'Judicial Takings' Goes Before U.S. Supreme Court
By M. Robert Goldstein and Michael Rikon
The U.S. Supreme Court has recently granted certiorari to the Florida Supreme Court in a claimed takings case which has an unusual twist to it; unusual because the basis for the claimed inverse condemnation is a decision of Florida's highest court interpreting the state's law of real property. We expect that it will attract a number of amicus briefs to it, including one from the Owners' Counsel of America, a national organization of attorneys practicing in the area of condemnation law, which alerted us to this case.
As described in the briefs and decision in Stop the Beach Renourishment Inc. v. Florida DEP, etc., 998 So2d 1102 (Fla., 2008), the Florida Legislature adopted the Beach and Shore Preservation Act in response to the devastation to Florida's Gulf of Mexico beaches caused by massive hurricanes in that area. The act provided that where there was a storm-damaged beach that the state wished to restore, it, through one of its agencies, would establish an 'Erosion Control Line' (ECL) by survey. The line, coinciding with the mean high water line (MHWL) at that time, would then be recorded.
It is that latter line which is the title boundary to waterfront property under the common law. That ECL would then become the property's waterfront boundary instead and in the event of a storm, which washed away the beach, the state would restore the beach back to the ECL. The problem was that if there was an accretion which added land and the shoreline built up to the point where the MHWL was outshore of the ECL, the property affected would no longer have title to the MHWL, its title, by reason of the act, being frozen forever to the ECL. The land outshore of the ECL would become vested in the state. By this means, property would become separated from the ocean.
The act, recognizing this as a problem, since Florida historically recognized the riparian rights which go with waterfront property, provided that the property so affected should nonetheless still have the right of access over the land between the ECL and the water, now owned by the state. It would have, by statute, the rights of 'view, boating, bathing and fishing.' In effect, this would make this added land part of the foreshore, albeit the foreshore would no longer merely be that area between low water and the MHWL, but between the ECL and low water.
Pursuant to the act, the state established an ECL over a 6.9-mile stretch of beach in Destin, Fla., affecting 453 individual properties. The petitioners were five of those affected. They challenged the constitutionality of the act as a taking without just compensation and a denial of the due process of law. An amicus brief in support of the application was filed on behalf of the Pacific Legal Foundation, a California-based organization active in property rights cases.
The allegation made by the petitioners was that the act was an unconstitutional taking of their property by changing the boundary line of their property. They stated that under the common law, it had long been recognized in Florida that an accretion to waterfront property became part of the property owned by the upland owner. It was also claimed that their common law constitutional rights were being replaced by a statutory right, that they are not the same nor do they provide the same protection to the property owner.
The lower courts in Florida found that the addition of the ECL resulted in an uncompensated taking of the riparian rights of the property owners and invalidated the ECL, finding the statute, as applied, was invalid. The case was sent to the Florida Supreme Court with a certified question of the constitutionality of the act, as applied, resulting in a taking of property without just compensation.
Decision and Dissent
The Florida Supreme Court changed the certified question from an as applied to a facial challenge to the act and reversed, finding the statute facially constitutional. It recognized that while 'Florida case law has clearly defined littoral rights as constitutionally protected private property rights,' 'the exact nature of these rights has rarely been defined in detail.' It then proceeded to define those rights, concluding that the right to accretion and access never existed at all. It concluded the right to accretion is 'a contingent, future interest that only becomes a possessory interest if and when land is added to the upland by accretion or reliction,' that, by establishing the ECL, nothing has been taken. Besides, the Court stated, the act solves the problem of having access to the water that the right of accretion was created to solve.
There were two dissents, stating Florida law, whether common, statutory or constitutional, unequivocally provides that the right to have one's property remain in contact with the MHWL is a condition precedent for a land owner to have littoral rights. As was said by one of the dissenters, Justice R. Fred Lewis, as part of a lengthy dissent, 'I cannot join the majority because the majority has simply erased well established Florida law without proper analysis.'
Reading the blogs which followed the granting of cert. by the U.S. Supreme Court, it is clear that the land use community, which usually follows this type of application, was totally surprised that it was granted. After all, what the highest court of a state says is the law relating to its real estate is the law, by definition.
We suspect that what caught the Court's interest was the heading to the first point in the petition for cert. which stated: 'In making 'non-existent' rules of State substantive law, the Florida Supreme Court reversed 100 years of uniform holdings that littoral rights are constitutionally protected common law property rights, and, thus, caused a 'judicial' taking proscribed by the Fifth and Fourteenth Amendments to the United States Constitution.'
Now that, indeed, is an eye catcher. The claim made was that the Court, in order to achieve a pragmatic solution to beach erosion, redefined what constituted littoral rights so that the act could be upheld, that if such action was done by the Legislature, it would be deemed a regulatory taking and that it being done by court decision, makes it no less a taking.
But this statement of the case by the petitioners was not much more than was stated in one of the dissenting opinions by Justice Lewis: 'I cannot join the majority because of the manner in which it has 'butchered' Florida law in its attempted search for equitable answers to several issues arising in the context of beach restoration in Florida. In attempting to answer these questions, the majority has, in my view, unnecessarily created a dangerous precedent constructed upon a manipulation of the question actually certified. Additionally, I feel that the majority's construction of the Beach and Shore Preservation Act is based upon infirm, tortured logic and a rescission from existing precedent under a hollow claim that existing law does not apply or is not relevant here. Today, the majority has simply erased well-established law without proper analysis and has further disregarded the manner in which the parties pled, and the lower court analyzed in as-applied constitutional challenge,' (emphasis in original). There followed a detailed analysis of Florida case law as applied to littoral rights.
Matter of State Law?
Our first thought on reading the decision and briefs in the case was why didn't we think of such a challenge when faced with a New York Court of Appeals' decision with which we disagreed and which we believed applied a new concept to what we believed was long-established real property law. We assumed, with reason, that real property rights are governed by state law and it is the state's highest court which has the ultimate say on what that law is. Now, the Supreme Court has decided to take a case to review a ruling of Florida's highest court as to what is the law relating to real property in the context of an uncompensated taking on the claim that the Court's decision constituted a 'judicial taking.'
One wonders why there should be such a fuss where the statute involved attempted to restore the access to the water, albeit by statute, rather than being constitutionally protected. Outside of the fact that if dependent on statute, rather than a constitutionally protected right, the statute could be changed at any time, Justice Lewis' dissenting opinion describes another problem:
Under the legal principle adopted by the majority, the sovereign could now create, widen and extend 'sovereign' land or a portion of beach between what should represent the status-quo-ante MHWL (also known as the ECL) and the water by hundreds or even thousands of yards without impacting the rights of riparian or littoral property owners. This new-found governmental power could be used to create extended state-owned or sovereign lands between the once-private riparian or littoral property and the water, thereby, effectively severing private property from the sea, lakes and rivers, which instantly converts ocean-front, gulf-front, lake-front, and river-front property into something far less.
Well, there we have it, a disagreement as to what is Florida real estate law. What is so remarkable about that? So, why did the U.S. Supreme Court take the case? In the view of one observer, 'Property Prof Blog,' written by D. Benjamin Barros, associate professor of law at Widener University School of Law: 'This case gives the Court the opportunity to answer one of the great open questions in takings law; when, if ever, can a judicial decision constitute a taking of private property in violation of the Fifth Amendment's Just Compensation Clause?'
As the blogger noted, one would ordinarily assume: 'never,' that because the judiciary, rather than the Legislature, made the change, there cannot be a 'takings' problem. As the blog states: 'The Supreme Court has not squarely addressed the judicial takings issue, although there is some precedent from early substantive due process cases that might help the petitioners in Stop the Beach.' He went on to note that: 'I seriously doubt that the court would have granted cert. [had it] been able to find precedential support for the Florida Supreme Court's position.'
It looks as if we will get to find out if there is something called a 'judicial taking.'
M. ROBERT GOLDSTEIN and MICHAEL RIKON are partners of Goldstein, Goldstein, Rikon & Gottlieb.
Reprinted with permission from the August 25, 2009 edition of the New York Law Journal © 2011 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.