Can Government Take The “Beach” From Your Beach Front Property?

December 3, 2009

The Supreme Court heard oral arguments yesterday in an eminent domain case coming out of Florida. The court will decide whether the government can take private beach front property for use in a “beach replenishment” program without compensating the owners.

In 2003 the State of Florida decided to truck in sand to “prevent beach erosion” on certain beaches in the Florida panhandle. The owners of the waterfront property were told that their property lines had changed; the State would now own the new land created by the sand.  The owners offered to pay for the sand to retain their waterfront property status, but the State refused.  The State also did not consider this action a “taking”, so the homeowners were not compensated. The owners got together and sued to stop this, and the case has made its way to the Supreme Court.

Oh, did I forget to mention that the beaches in question weren’t suffering any erosion?  In fact, some appeared to be growing naturally.  The State didn’t feel the need to replenish the sand at local public beaches, just the private ones.

For a detailed account of the facts, read this post from the Eminent Domain Blog.

Judge Fred Lewis had some choice words for his fellow Florida Supreme Court Judges in his dissent: The court has “butchered Florida law,” he wrote, and “unnecessarily created dangerous precedent based on a manipulation of the question actually certified.” He talked about the landowners’ littoral rights. Huh? Well, Black’s Law Dictionary defines littoral rights as “rights concerning properties abutting an ocean, sea or lake rather than a river or stream (riparian).”  Littoral rights are usually spoken of in the context with the use and enjoyment of the shore.  These rights originated in English common law. Florida has now obliterated littoral rights with this decision, along with those rights accorded U.S. citizens by the Fifth Amendment to the U.S. Constitution. To be precise, that amendment reads in relevant part that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The State of Florida knows these beaches do not have an erosion problem. It simply wants to establish a public beach. It could have tried to do that by commencing normal eminent domain proceedings, but then it would have to prove that this “taking” was constitutional, and the owners would have to be compensated. The simple fact is that the State doesn’t want be pay. It would prefer government sponsored theft.

I hope the U.S. Supreme Court recognizes this fraud for what it is.

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