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Florida Eminent Domain Blog | Gregory W. Stoner
The Florida Eminent Domain Law Firm, PA
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Monday, November 10, 2008
A Legal Challenge to the Beach and Shore Preservation Act: Part 2
In considering the decision of the Florida Court of Appeals, District 1, the Florida Supreme Court rephrased the question at issue in the case as a question of eminent domain:
To decide the question, the Court considered many factors. First, it considered the nature of the Act and its relationship to the State of Florida's Constitution. It described the Act as part of the Constitution's statement that "It shall be the policy of the state to conserve and protect its natural resources and scenic beauty," and the protections in the Act as regards the littoral rights of the upland property owner. The Court even pointed out that the Act stipulates that "[i]f an authorized beach restoration, beach nourishment, and erosion control project cannot reasonably be accomplished without the taking of private property, the taking must be made by the requesting authority by eminent domain proceedings."
Next, the Court considered what exactly are the common law littoral rights possessed by beach property owners. It described the common-law understanding, deriving from English common law, that in actuality the state owns all waterways and beaches between the high- and low-water marks. The Court said that beachfront property owners actually have "no rights in navigable waters and sovereignty lands that are superior to other members of the public in regard to bathing, fishing, and navigation." Instead, the Court said, upland property owners held several special or exclusive rights, which it described as easements incident to their property, which are considered property rights that may not be taken without just compensation. These easements are:
If any of these rights are to be divested from the upland property, then it is to be considered a taking and requires an eminent domain proceeding.
The Court of Appeals decided that the Act was unconstitutional because it denied the upland owners of the right to accretion without an eminent domain hearing. The Supreme Court, on the other hand, said that the common-law doctrine of avulsion applied in this case. Avulsion describes a situation in which a catastrophic change in the shoreline occurs that could represent serious damage to either the public or private portion of a littoral property. In these cases, the line between public and private property is maintained at the place established before, regardless of the de facto changes in the shoreline. Because the Act pertains specifically to events in which catastrophic erosion threatens a beach, the Supreme Court determined that avulsion is central to the Act and therefore gives rationale to the establishment of an Erosion Control Line that stops property changes as a result of accretion and reliction.
Beachfront property rights are complicated, and if you are to protect your rights against the actions of government entities, you need the help of an experienced eminent domain lawyer. Contact the Florida Property Rights Law Firm, P.A. today to schedule a beach property rights consultation to make sure you get just compensation if your rights are infringed.
On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?
To decide the question, the Court considered many factors. First, it considered the nature of the Act and its relationship to the State of Florida's Constitution. It described the Act as part of the Constitution's statement that "It shall be the policy of the state to conserve and protect its natural resources and scenic beauty," and the protections in the Act as regards the littoral rights of the upland property owner. The Court even pointed out that the Act stipulates that "[i]f an authorized beach restoration, beach nourishment, and erosion control project cannot reasonably be accomplished without the taking of private property, the taking must be made by the requesting authority by eminent domain proceedings."
Next, the Court considered what exactly are the common law littoral rights possessed by beach property owners. It described the common-law understanding, deriving from English common law, that in actuality the state owns all waterways and beaches between the high- and low-water marks. The Court said that beachfront property owners actually have "no rights in navigable waters and sovereignty lands that are superior to other members of the public in regard to bathing, fishing, and navigation." Instead, the Court said, upland property owners held several special or exclusive rights, which it described as easements incident to their property, which are considered property rights that may not be taken without just compensation. These easements are:
- The right to have access to the water
- The right to reasonably use the water
- The right to accretion and reliction
- The right to the unobstructed view of the water
If any of these rights are to be divested from the upland property, then it is to be considered a taking and requires an eminent domain proceeding.
The Court of Appeals decided that the Act was unconstitutional because it denied the upland owners of the right to accretion without an eminent domain hearing. The Supreme Court, on the other hand, said that the common-law doctrine of avulsion applied in this case. Avulsion describes a situation in which a catastrophic change in the shoreline occurs that could represent serious damage to either the public or private portion of a littoral property. In these cases, the line between public and private property is maintained at the place established before, regardless of the de facto changes in the shoreline. Because the Act pertains specifically to events in which catastrophic erosion threatens a beach, the Supreme Court determined that avulsion is central to the Act and therefore gives rationale to the establishment of an Erosion Control Line that stops property changes as a result of accretion and reliction.
Beachfront property rights are complicated, and if you are to protect your rights against the actions of government entities, you need the help of an experienced eminent domain lawyer. Contact the Florida Property Rights Law Firm, P.A. today to schedule a beach property rights consultation to make sure you get just compensation if your rights are infringed.
posted by Patti at 2:00 PM
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