Amicus Brief Background

Stop the Beach Renourishment v. Florida Department of Environmental Protection

APA and its Florida Chapter filed an amicus brief in this important takings case before the U.S. Supreme Court to urge the court to reject the notion of a judicial taking. The brief was drafted by Professor John Echeverria of Vermont Law School.

About the Decision

The U.S. Supreme Court rejected a takings claim from a group of oceanfront homeowners and affirmed that Florida can undertake beach restoration projects without paying beachfront property owners. The 8 – 0 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection did not settle the issue of whether a court decision can constitute a taking. Property rights activists had hoped the case would establish such a judicial taking. APA filed an amicus brief supporting the State of Florida and arguing against the concept of a judicial taking.

The Court’s conservative bloc Justices Scalia, Thomas, Alito and Chief Justice Roberts – accepted the idea of a judicial taking but found that the facts in this case did not amount to such a taking. The other Justices rejected that argument with separate opinions written by Justice Kennedy (joined by Justice Sotomayor) and Justice Breyer (joined by Justice Ginsberg). Justice Stevens recused himself from the case. Justice Kennedy proved to be a key vote in the decision denying a majority in support of judicial takings. His opinion echoed several arguments opposing judicial takings contained in APA’s brief.

About the Case

The U.S. Supreme Court will hear oral arguments in an important takings case on December 2, 2009.

Petitioners in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection are challenging the Florida Supreme Court's ruling that the state's Beach and Shore Preservation Act does not result in an uncompensated taking.

These beachfront property owners believe the act — which authorizes the state to fix a definite boundary or "Erosion Control Line" between their upland private property and the lands seaward belonging to the public — has taken their littoral rights without payment of just compensation. "Riparian" is often interchangeable with "littoral," which refers to lands abutting an ocean rather than a river.


What exactly does this case mean for planners? Listen to the latest podcast from APA featuring:

  • Lora Lucero, AICP, liaison to APA's Amicus Committee and editor of Planning & Environmental Law
  • John Echeverria, author of APA's amicus brief and professor of law at Vermont Law School
  • Nancy Stroud, attorney at Lewis Stroud & Deutsch, PL; and member of APA's Amicus Committee

Five property owners say a 2003 beach renourishment project to repair erosion in Walton County, Florida, was a taking without compensation. Now, the U.S. Supreme Court will decide

Image: Five property owners say a 2003 beach renourishment project to repair erosion in Walton County, Florida, was a taking without compensation. Photo courtesy of Beaches of South Walton TDC.

Interestingly, the very property owners who seek payments under this case benefit from the beach replenishment actions. In addition to being protected, they want the Supreme Court to assure that they are compensated for the very actions that protect them.

The case raises many interesting issues for legal scholars, but planners will be focusing specifically on one: Will the nation's highest court create a new category of takings called a "judicial taking"? Petitioners claim that the Florida Supreme Court's decision was a "judicial taking" because the court "redefined" property rights so that the state would not be required to pay just compensation. 

The APA and its Florida Chapter filed an amicus brief in October that urges the U.S. Supreme Court to reject this novel theory that a judicial ruling on a question of state property law can constitute a compensable taking.

Why Is this Case Important to Planners?

  1. States and local governments have taken the lead in developing mitigation and adaptation measures to address ongoing hazards, such as hurricanes, that routinely remake shorelines. A judicial takings doctrine threatens states' ability to respond to the serious impacts of natural events, such as hurricane damage in Florida. If states and local governments are required to pay private property owners for actions taken in the public interest and, frequently, protecting private interests, government will not be able to afford protective measures. Instead, it will forgo beach renourishment projects and other activities that might expose governments to a newly created form of takings liability.
  2. In the hundreds of years of Anglo-American property law, there has always been a tension between the public and private interests in land. The pendulum has swung many times. The planning profession advocates a balance, and planners believe that the private interests can be protected while at the same time responding to the needs and concerns of the general public. Property has no value except in the context of a society, and private rights include reciprocal responsibilities.
  3. Beach protection programs such as Florida's beach restoration program protect both private and public property from the hazards of storm damage. The Florida Supreme Court found that the proper balance was struck between limiting the private property owner's risk of critical erosion and the owner's otherwise contingent potential for future sand accretion under the common law, while preserving private rights of access, use, and view. The proponents in this case seek to disrupt this careful balance by creating a new takings doctrine that inserts the federal courts into state property rights decisions in a way that threatens to overturn the historic and well-established responsibility of state courts under our federal system.