Real Estate & Property Law

Oral Arguments In Judicial Takings Case: Are State Courts Bound By The Takings Clause?

By Robert Thomas (inversecondemnation.com)

On Wednesday, December 2, 2009, the U.S. Supreme Court will hear oral arguments in the biggest takings case of the year, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This is the case in which the Court is considering the theory of "judicial takings" and whether state courts are bound by the Fifth Amendment when they consider state property law. 

The case has been pitched as a contest between littoral property owners' rights to have beach-front property (as opposed to beach-view property), and a state judiciary's ability to adopt and shape a state's common law.

The merits briefs, the 21 amicus briefs, and the decisions of the Florida state courts are available on our resource page. Disclosure: we filed an amicus brief in the case, supporting the property owners, available here.

The Court is considering three questions:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

On the first question, while the Court has implicitly recognized that a taking can occur if a court decision departs from long-standing principles, it has yet to directly address the question.

The case has generated a fair amount of interest and media coverage. Here are several links with summaries and analysis:

• Will the Court Take On Judicial Takings? (SCOTUSblog)

• Cornell Law School's Legal Information Institute's summary of the case

• Supreme Court will hear oral argument in Florida beach takings case (Owners' Counsel of America's Eminent Domain Law Blog)

• US Supreme court to hear Fla. beach dispute (Associate Press)

• Florida Giveth, but Does It Taketh Away? (ACS Blog)

• Talkin' Takings, Part II: the Florida Beach Case (Wall Street Journal Law Blog)

• Landowners on Florida beaches fighting to be sand owners, too (Washington Post)

• Richardson proves dreams can come true (Honolulu Advertiser)

• If you happen to be in D.C. on Wednesday, visit the Post-Argument Panel on Stop the Beach (via PropertyProf Blog)

• Supreme Court to hear Florida beach-property rights case (Miami Herald)

Full post as published by inversecondemnation on December 01, 2009 (boomark / email).