Now in Legal Rebels:
Posted Jun 15, 2009 03:45 pm CDT
In something of a surprise cert grant, the U.S. Supreme Court has agreed to consider whether Florida’s battle against beach erosion amounts to an unconstitutional taking of private owners’ coastal property.
The regulatory takings case could be “could be quite significant,” Case Western law professor Jonathan Adler writes at the Volokh Conspiracy, although he cautions that his assessment is based on an initial look at the case, Stop the Beach Renourishment v. Florida Department of Environmental Protection.
At issue is whether Florida’s Beach and Shore Preservation Act unconstitutionally deprives coastal property owners of just compensation in violation of the Fifth Amendment. In September 2008, the Florida Supreme Court had upheld provisions of the law governing critically eroded beaches.
The law provides for replenishing eroded beaches with new sand that becomes public land, cutting off property owners’ private access to the water, according to a summary on the Pacific Legal Foundation website. The plaintiffs are beachfront property owners in Destin, Fla., who are challenging a project that would widen the beach by 210 feet over nearly seven miles of shoreline, the Associated Press reports.
Adler writes that the cert grant may have been a surprise even to the Pacific Legal Foundation, which supported the petition for Supreme Court review. “The good folks at SCOTUSblog, for instance, did not have the case on their ‘petitions to watch’ list,” he says at the Volokh Conspiracy. “To be fair, it’s not clear the good folks at PLF thought the case was a likely grant either, as there is relatively little about it on their website.”
The ABA Journal covered fights between landowners and governments battling coastline erosion in the July 2006 story, “Up Against the Seawall.”