Eminent Domain Report

A year or so ago, I attended a three-day symposium on regulatory takings that was held at Stanford University. At the end of the symposium, the final panel of speakers was asked to predict what the United States Supreme Court might be doing in the area of takings over the next couple of years. The answer of at least one panelist was essentially nothing. In his view (at least as I understood it), the Supreme Court had been grappling with various takings issues for years without coming up with particularly workable formulas and was done trying.

Well, based on an article in the Los Angeles Times today by David G. Savage, Supreme Court to Hear Florida Beach Property Rights Dispute, it looks like the Supreme Court will weigh in on a takings issue in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.

The twist that might save the accuracy of the panelist’s prediction is that the case is not a typical regulatory takings case, one where a government regulation, typically a zoning limitation, has gone too far, resulting in a substantial or complete loss in value to the property.

According to the article:

The Florida case began in 2004 when five property owners objected to a state-funded beach restoration project east of Pensacola. More than six miles of white sandy beaches had been eroded by several hurricanes, and the project called for adding up to 75 feet of new sand to the shoreline.

But this public benefit came with a downside for beachfront property owners. The newly built-out beach would be public land.

While many landowners accepted this deal, a few objected and then sued when the project went ahead. They claimed the government had taken their private property, or at least their right to a private beachfront.

"Everyone knows that waterfront property is more valuable than water-view property, and that a private beach is worth a lot more than a public one," said Kent Safriet, a Tallahassee, Fla., lawyer representing the property owners. "This is not a land grab by my clients. It is a land grab by the state to create a public beach."

On its face, a case involving the increase or decrease in the size of a beach would seem to have little relevance to other takings situations. Certainly no agency is likely to build a beach in front of my thoroughly land-locked home. But if the Supreme Court viewed the case so narrowly, it is unlikely that the Court would have agreed to hear it. Presumably, the Justices must instead expect that they can bring some clarity to takings law or can correct something they view as an error in the existing law.

The article mentions an odd twist in that the owners’ attorneys are asking the Court to rule that the state’s judges -- rather than a particular agency -- actually did the taking, i.e., it was a "judicial taking." I have to agree that this seems an odd holding: Who would actually pay the judgment? The judges themselves? But it is an issue in the case -- for reasons that would likely take several, boring pages to explain; so I won't try here.

Oral arguments in the case are scheduled to be heard by the Court today. It will be fascinating to read what the Court’s final opinion does or doesn’t do to takings law.