Florida’s Beachfront Property Rights

“To speak of riparian or littoral rights unconnected with ownership of the shore is to speak a non sequitur. Hopefully, the Supreme Court will take jurisdiction and extinguish this rather ingenious but hopelessly illogical hypothesis.” Belvedere Development Corp. v. Division of Administration, 413 So.2d 847 (1982)

Littoral Rights

Historically, in Florida at least, property lines for beachfront land owners extend to the water’s edge as determined by the mean high tide line (you own everything up to the “wet sand”). However, in the aftermath of recent hurricanes that have eroded Florida’s coast, the state government undertook a beach reclamation project called, the Beach and Shore Preservation Act affecting both Okaloosa and Fort Walton Counties, which include Navarre, Fort Walton, Destin and San Destin beaches along the Florida panhandle.

Okay. I like the beach and preserving it is an arguably worthwhile cause, except Florida is effectively using this as an eminent domain taking claiming that they now own the part of the beach that has been restored.

Not so beachfront anymore, which creates some interesting Constitutional issues for the affected property owners.

Recent Florida laws have allowed for the public to occupy a 20 foot wide strip of land from the mean high tide line inland. This is to prevent private landowners from bringing trespass claims against people who walk the beach. Fair enough as you still own the land, just don’t be zealously litigious to people trying to walk along the beach. Now the state wants to have a discernible property line and assume the uncertainty of the tide.

In 2004, beachfront property owners in Walton County filed a suit seeking to enjoin the restoration of their beach.  They argued that creating a public beach on land that had once been theirs amounted to a taking of their property without just compensation under the U.S. Constitution.  In 2006, Florida’s First District Court of Appeal sided with the property owners.  In 2008, the Florida Supreme Court overturned that decision.

Justice Bell, writing for the majority, based the decision on the following arguments:

“The State has a constitutional duty to protect Florida’s beaches, part of which it holds in trust for public use. The Beach and Shore Preservation Act effectuates this constitutional duty when the State is faced with critically eroded, storm-damaged beaches.” Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102.

“Under Florida common law, the legal effect of changes to the shoreline on the boundary between public lands and uplands varies depending upon whether the shoreline changes gradually and imperceptibly or whether it changes suddenly and perceptibly. Blackstone summarized this ancient distinction as follows:

And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex: and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king: for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil, when the water has left it dry.” Id.

LONG LIVE THE KING! Oh, wait, this is America…

Justice Bell goes to great lengths to describe the nature of the Erosion Control Line, Mean High Tide Line, avulsive events, accretion and a bunch of other things that don’t address the fundamental issue: unConsitutional land takings that lack just compensation. The majority views this case in a narrow, subjective manner believing that the state is behaving in the best interests of the land owners. I am of the opinion that the government taketh and taketh some more. The majority opinion in this case has an utter disregard of property rights.

The majority concluded that, “In light of the above, we find that the [Beach and Shore Preservation] Act, on its face, does not unconstitutionally deprive upland owners of littoral rights without just compensation. Consequently, we answer the rephrased certified question in the negative and quash the decision of the First District” Id.

Now for the dissent, written by J. Lewis to which I overwhelmingly agree with:

Butchering the Law

“I cannot join the majority because of the manner in which it has “butchered” Florida law… [and] in my view, unnecessarily created dangerous precedent constructed upon a manipulation of the question actually certified… 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 Florida law without proper analysis, and has further disregarded the manner in which the parties pled, and the lower court analyzed, an as-applied constitutional challenge.” Id.

“The problem with the underlying logic and reasoning of the majority is not really a matter of just a few yards of sand but is, instead, its failure to acknowledge and account for the fundamental result that occurs in the absence of the inherent right of contact with the water. 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.” Id.

“I suggest that contact with the water by riparian or littoral property is not ancillary, independent, or subsidiary to such property but is essential and inherent to its legal definition and is an indispensible predicate for the private owners’ possession of other associated rights. Accordingly, I cannot agree that the Sovereign may create a substantially wider “foreshore,” which unnecessarily destroys the inherent and essential nature of riparian and littoral property along with valuable property rights.” Id.

On Monday, June 15 2009, the U.S. Supreme Court granted certiorari for this case.

Hopefully the Supreme Court will rule in favor of the First District Court and overturn the decision reached by the Florida Supreme Court. I cannot imagine already diminished Florida property values benefiting if the Court rules that the right of a littoral property owner to touch the water can be severed.

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Tags: Legal Issues, Property Rights

This entry was posted on Wednesday, October 28th, 2009 at 11:01 am and is filed under Property Rights. You can follow any responses to this entry through the RSS 2.0 feed.