Real Estate & Property Law

Cato Institute And Pacific Legal Foundation Amicus Brief In Beach Takings Case

By Robert Thomas (inversecondemnation.com)

The Cato Institute, the National Federation of Independent Business Legal Center, and the Pacific Legal Foundation have filed this amicus brief supporting the property owners in t Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The brief argues:

In the opinion below, the Florida Supreme Court departed from long-established state law protecting the property rights of beachfront landowners. Stop the Beach Renourishment, Inc., 998 So. 2d 1102. As Justice Lewis noted in his dissent, the decision summarily altered the definition of littoral property that had governed in Florida: "In this State, the legal essence of littoral or riparian land is contact with the water. Thus, the majority is entirely incorrect when it states that such contact has no protection under Florida law and is merely some 'ancillary' concept that is subsumed by the right of access." Id. at 1122 (Lewis, J., dissenting). So drastic was the court?s departure from settled precedent that it functionally eliminated fundamental constitutional protections that owners of beach property had relied on for almost 100 years.

This Court never has formally addressed the question of whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner's due process rights, under the United States Constitution. This Court has sanctioned, and  applied, an analytical framework similar to the judicial takings doctrine in a variety of other contexts, holding that state court decisions, just like actions of the executive and legislative branches, can violate constitutional rights.

There is no textual or theoretical reason for this Court to deny property owners just compensation for a taking solely because the acting branch of government is judicial instead of executive or legislative. In fact, the realities of modern property law, including the authority of state courts to define  background principles of property law as recognized in this Court?s opinion in Lucas v. South Carolina Coastal Council, 505 U.S. at 1029-30, necessitate that property owners be protected, via the judicial takings doctrine, against state court decisions that abrogate constitutional rights.

More about the case on our resource page.

Full post as published by inversecondemnation on August 20, 2009 (boomark / email).