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High Court: Florida Supreme Court's Beachfront Property Ruling Not Unconstitutional Taking

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 17 unanimously affirmed a Florida Supreme Court ruling that the Florida Beach and Shore Preservation Act does not unconstitutionally deprive beachfront property owners of shoreline rights without just compensation (Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., No. 08-1151, U.S. Sup.).

In 2003, the City of Destin, Fla., and Walton County, Fla., began plans to restore 6.9 miles of hurricane-eroded beaches and dunes.  Pursuant to the Florida Beach and Shore Preservation Act, Florida Statutes Sections 161.011-161.45 (2007), the Board of Trustees of the Internal Improvement Trust Fund set an erosion control line, and the state took title to all lands seaward of that line.

The organization Stop the Beach Renourishment Inc. (SBR), on behalf of the owners of beachfront property bordering the project area, unsuccessfully challenged the act in a series of administrative and judicial proceedings culminating with the Florida Supreme Court's ruling.  The U.S. Supreme Court granted SBR's petition for a writ of certiorari on June 15, 2009.

\ustice Antonin Scalia delivered the opinion of the court with respect to the conclusion that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and 14th Amendments.

"There is no taking unless petitioner can show that, before the Florida Supreme Court's decision, [beachfront property owners] had rights to future accretions and contact with the water superior to the State's right to fill in its submerged land.  Though some may think the question close, in our view the showing cannot be made," the court said.

Justice Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., concluded that "[i]f a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation," in violation of the takings clause.

Justice Anthony M. Kennedy filed an opinion concurring in part and concurring in the judgment.  Justice Kennedy, joined by Justice Sonia Sotomayor, agreed that the Florida Supreme Court did not take property without just compensation but concluded that the instant case did not require the court to determine whether "a judicial decision that eliminates an 'established property right,' . . . constitutes a violation of the Takings Clause."

Justice Stephen G. Breyer also filed an opinion concurring in part and concurring in the judgment.  Justice Breyer, joined by Justice Ruth Bader Ginsburg, agreed that no unconstitutional taking occurred but concluded that it was unnecessary to decide constitutional questions beyond its ruling that the Florida Supreme Court's decision did not amount to a "judicial taking."

Justice John Paul Stevens took no part in the decision of the case.

[Editor's Note:  Full coverage will be in the June issue of the LexisNexis Real Estate Report.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #82-100630-005Z.  For all of your legal news needs, please visit]

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