Dueling Supreme Courts to Decide Beach Replenishment Takings Issues Heard on Same Day
The United States Supreme Court and New Jersey Supreme Court heard oral arguments on the same day this week in cases focusing on the issue of where a beachfront property owner’s rights end, and the public’s rights begin, when the government decides to replenish beaches with public funds.
The United States Supreme Court, in Stop the Beach Nourishment v. Florida, reviewed whether the Florida Supreme Court’s interpretation of case law and state legislation constituted a judicial taking of private property without just compensation. The Florida high court opinion is available here. The petitioner’s argument could be restated as whether a beachfront owner has a right to remain a beachfront home or can be relegated to a beach view home with water access rights. Under the Florida statute the state could pump sand from one area to another to combat erosion and to protect ocean-front property. An Erosion Control Line (ECL) was then established where the Mean High Water Line (MHWL) existed, and any land seaward of the ECL would thereafter belong to the public. At issue was an upland owners’ right to have his property touching the water versus merely having an easement to access the water below the ECL on the replenished beach, and the right to restrict use of the property upland of the ECL. The Florida Supreme Court upheld the statute that created the ECL to replace the MHWL as the property owner’s new property line after a beach replenishment instead of the following the established common law rule that an upland owner owned to the MHWL.
Some of the Supreme Court justices appeared sympathetic to the property owners’ situation and interpretation of the law. Justice Scalia noted that beachfront homes are more valuable than beach view homes, while Justice Alito argued that a beachfront owner would be powerless if the state decided to create an enlarged beach to attract spring break partygoers. Other justices appeared less sympathetic by noting that no permanent structures could be located on the newly created beach, and that the owners’ access rights remain unchanged under the statute. Justice Stevens’ lack of participation is believed to be based on the fact the he lives in Florida. A decision is expected Spring of 2010.
News stories on the Florida case are available from CNN; The Wall Street Journal; The New York Times ; and The Miami Herald
On the same day that the Florida case was argued in Washington, the New Jersey Supreme Court heard arguments in City of Long Branch v. Liu, which also involved a beach replenishment program, but presented a different factual scenario from the Florida case. In Long Branch, the Lius sought separate compensation for the replenished beach placed between the MHWL and the upland property taken through eminent domain for redevelopment. The trial court and Appellate Division ruled that the Lius, as the upland property owners, were not entitled to compensation for land that was created by the publicly funded beach replenishment because it was created as public property, and were justly compensated for the upland property taken for redevelopment purposes based upon a jury verdict obtained at trial. The Appellate Division opinion is available here.
During the argument, Supreme Court Justices Albin and Rivera-Soto questioned why the public should not be entitled to benefit when public funds are used to replenish beaches. The Lius argued that New Jersey law has always recognized the MHWL as a beachfront owner’s property line, and upland owners were entitled to accretion under the holding in Wildwood Crest v. Masciarella, 51 N.J. 352 (1968), and noted that the current property owner’s tax assessment includes the replenished area. One issue that the parties and the justices failed to raise is what happens to the beachfront owner’s long-recognized right of accretion when a beach is replenished and the static ECL becomes the new property line. The New Jersey Supreme Court opinion is anticipated early next year.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
