Florida Eminent Domain Blog | Gregory W. Stoner

We have spoken on several occasions about the legal challenge to the Beach and Shore Preservation Act (BSPA), but mostly we have looked at the majority opinion. However, it is the strength of the dissent's remarks that have cause the Supreme Court to hear the case, so it makes sense for us to take some time to understand what the dissent is saying.

The dissent notes that the majority opinion depends on severing littoral rights from literal contact with the water. The Supreme Court of Florida stated that the literal connection with the water is not inherent to riparian water rights, but the dissent states, "By essential, inherent definition, riparian and littoral property is that which is contiguous to, abuts, borders, adjoins, or touches water."

The dissent makes significant use of Belvedere Development Corporation v. Department of Transportation (1982), which agrees with the principle that "To speak of riparian or littoral rights unconnected with ownership of the shore is to speak a non sequitur," as well as utilizing a number of earlier decisions for definitional support of littoral rights being based on actual contact with the water. Belvedere is a case in which the Florida Department of Transportation (FDOT) sought to acquire land at the water's edge of properties using eminent domain and paying only a simple fee for the land actually taken without paying severance damages, which the Court decided was inappropriate because taking upland property inherently severed the property from the water.

Most importantly, the dissent calls attention to Hughes v. Washington (1967), which notes the soundness of the principle of accretion and reliction rights, saying "Any other rule would leave riparian owners continually in danger of losing the access to the water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines."

The dissent acknowledges that the BSPA may be constitutional if it allowed Florida to restore the beach only to the point that the new water line were at the ECL, but as soon as it goes beyond that to create new beach, it must acknowledge that doing so constitutes a partial taking that severs littoral property rights from the upland property.

It will be interesting to see whether the US Supreme Court upholds the Florida Supreme Court decision or favors the dissent.

If you believe that the actions of a federal, state, or local government constitute a taking of your property, you may be able to file an inverse condemnation lawsuit. The Florida Property Rights Law Firm, PA can help you protect your property and your rights. Please contact us today to learn more.