Is Florida Taking by Giving?

author: Mei Ng
Although Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., 560 U.S. ____ 2010, No. 08-1151 (June 17, 2010) originated in Florida, this case hits particularly close to home to us February 2010 California State Bar takers. Specifically Question 5 of the California Bar Examination, which asked us to discuss a total taking and partial taking of a development application. This question sure took me for a loop. The only thought going through my head was “How the heck can I write for an hour on a topic we only spent a few minutes studying?” I quickly read the hypothetical, and flipped the page to Question 6 even quicker. Oh Community Property, how I love thee.
Finally during the last hour of the morning session of Day 3 of the Bar Examination, I hesitantly turned the test booklet to Question 5. I read the hypothetical again, and again. Ah… Something was finally clicking… I finally started to recall what physical and regulatory taking are. I could not hold back any longer. For better or for worse, I wrote. I wrote for an hour and didn’t look back. I am glad it was for the better.
The Fifth Amendment of the U.S. Constitution in part states, “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.” So what does that mean? Even the Supreme Court Justices were at a deadlock in their 4-4 decision of this case (Justice Stevens recused himself from the case because he owns property affected by the ruling).
The Florida Department of Environmental Protection implemented a project to restore 6.9 miles of eroded beaches in the Florida Panhandle by adding 75 feet of dry sand seaward to the high-tide line, adding more distance to the beach for oceanfront beach property owners. The issue was whether Florida’s efforts to restore some of its beaches rose to the level of a taking due to the restoration work’s causing former beach-front owners’ property lines to be moved further away from the ocean water. According to Rick E. Rayl from www.californiaeminentdomain.com, “the Court held unanimously that the Florida Supreme Court’s decision did not constitute a taking. The Court upheld the ruling in favor of the state, meaning those beach-front property owners whose property is now a bit further away from the ocean are out of luck.” (Click on the link above to read the entirety of the case.)
So… what does this have to do with anything? Not much. The majority of us do not own oceanfront property nor do we own ocean-view property. Most of us live in the suburbs of a major city or condominiums in downtown close to the embarcadero. The reason why I decided to blog about this particular case was because, as I mentioned in the first paragraph, this case hits close to home. Takings clause, I’m glad you and me will possibly never ever meet again.
If you have any questions or comments on the blog, email us at: blog@lauruslaw.com.