Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).
In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.
The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the mean high water line has been supplanted by the erosion control line as the public/private boundary on beaches. In other words, this case is not ready for judicial review. Second, the brief argues the common law right to accretion was not lost, merely suspended for the duration of the beach renourishment project.
The brief concludes by arguing the Act actually benefits the littoral owners because “there is not a taking of the common law right of accretion but a grant of enhanced statutory property rights which supplant common law accretion, subject to a statutory reverter to common law accretion and erosion if the government fails to complete or maintain a beach restoration project.” Brief at 30-41.
We filed an amicus brief supporting the property owners, which is available here. The property owners’ merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here.
Oral arguments in the Supreme Court are set for December 2, 2009.
More about the case on our resource page and in this report from the Destin Log (the hometown newpaper).