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Florida Eminent Domain Blog | Gregory W. Stoner
The Florida Eminent Domain Law Firm, PA
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Friday, October 31, 2008
A Legal Challenge to the Beach and Shore Preservation Act: Part 1
Following Hurricane Opal (1995), the Florida Department of Environmental Protection placed the beaches of Walton County and the City of Destin on its list of critically eroded beaches, which initiated the process of beach restoration through renourishment, according to the process described in Florida's Beach and Shore Preservation Act. In response to this action, several homeowners in the area and other interested parties formed Stop the Beach Renourishment (STBR), Inc, and filed two petitions for hearings. The first petition challenged the issuance of the permit for renourishment, and the second challenging the constitutionality of the Beach and Shore Preservation Act.
At issue was a particular aspect of the Beach and Shore Preservation Act, which allows the state to draw a new dividing line between publicly owned beach and privately owned upland known as the erosion control line (ECL) which is placed at the mean high water level (MHWL) determined by a beach survey. In its petition, STBR claimed that the establishment of the ECL constitutes and illegal taking of property rights because it divests the common law littoral rights from the properties of beachfront property owners, including the right to accretion as a result of natural processes, essentially making them inland property owners. Although the Beach and Shore Preservation Act substitutes some specific forms of littoral rights, STBR claimed that these rights were an inadequate substitute for the common law littoral rights eliminated by the establishment for the ECL.
STBR won this challenge in the First District Court of Appeals, which stated that the Beach and Shore Preservation Act did, in fact, take from beachfront property its direct access to the water since it established a de facto shoreline at the ECL.
However, the Florida Department of Environmental Protection would appeal this decision and take the challenge to the Florida Supreme Court, which would issue its decision on September 29th, and which we shall discuss in detail next blog.
Many people purchase Florida property specifically for the beachfront, counting on the value of the littoral rights associated with the property to constitute the majority of the property's value. If you feel your beachfront property rights are being improperly appropriated as a part of an eminent domain procedure or an illegal form of taking, schedule an eminent domain consultation with a Florida eminent domain lawyer at the Florida Property Rights Law Firm, PA.
At issue was a particular aspect of the Beach and Shore Preservation Act, which allows the state to draw a new dividing line between publicly owned beach and privately owned upland known as the erosion control line (ECL) which is placed at the mean high water level (MHWL) determined by a beach survey. In its petition, STBR claimed that the establishment of the ECL constitutes and illegal taking of property rights because it divests the common law littoral rights from the properties of beachfront property owners, including the right to accretion as a result of natural processes, essentially making them inland property owners. Although the Beach and Shore Preservation Act substitutes some specific forms of littoral rights, STBR claimed that these rights were an inadequate substitute for the common law littoral rights eliminated by the establishment for the ECL.
STBR won this challenge in the First District Court of Appeals, which stated that the Beach and Shore Preservation Act did, in fact, take from beachfront property its direct access to the water since it established a de facto shoreline at the ECL.
However, the Florida Department of Environmental Protection would appeal this decision and take the challenge to the Florida Supreme Court, which would issue its decision on September 29th, and which we shall discuss in detail next blog.
Many people purchase Florida property specifically for the beachfront, counting on the value of the littoral rights associated with the property to constitute the majority of the property's value. If you feel your beachfront property rights are being improperly appropriated as a part of an eminent domain procedure or an illegal form of taking, schedule an eminent domain consultation with a Florida eminent domain lawyer at the Florida Property Rights Law Firm, PA.
posted by Patti at 8:40 AM
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