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Law and the Environment 8/15/2009 6:58:42 PM EST Supreme Court to review Florida beach erosion law alleged to be a "taking" Partner, Ropers Majeski Kohn & Bentley One of the ongoing debates over the last couple of decades has been whether regulatory action, particularly environmental and land use controls, are an illegal "taking" under the Fifth and Fourteenth Amendments to the U.S. Constitution. To state that the past Supreme Court cases have been a model of obscurity would be a classic understatement. Once again, the issue has been tied up.
After a seven-mile restoration in the City of Destin, Florida, and in Walton County, Florida, resulted in a new high water line, six property owners lost direct access to a beach. They formed a nonprofit organization and sued. The landowners argued that 5th and 14th Amendments were violated because the scheme eliminated property rights linked to their (formerly) beachfront properties. The Florida Supreme Court held 5-2 that the statute did not unconstitutionally deprive the property owners of littoral rights relating to the use of coastal property without just compensation. Walton County et al v. Stop the Beach Renourishment Inc., 998 So.2d 1102 (Fla. 2008).
The U.S. Supreme Court has now agreed to review the Florida case. Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection et al, Docket No. 08-1151 (2009).
What is ironic about this case is that it is reflective of a key shortcoming in local planning activities. In a number of geographic areas (e.g., coasts, slopes and mountains) governments permit development in areas that are inherently unstable or prone to change, often not just from Mother Nature but also from human-induced activity (e.g., dams on rivers impacting the coastal movement of sand, and thus beach erosion). Folks complain. Then, when government takes action to "correct" the problem (often nothing more than a temporary fix), others complain because the correction causes problems. Nature is not constant; it is ever changing. Like rebuilding in forests after fires, in floodplains after floods, and in earthquake zones after earthquakes, residents are clueless about the likely long-term consequences. As the economists say, time to internalize the externalities so that the true cost of this shortsighted behavior is not thrust upon the taxpayers. What it also demonstrates is that traditional concepts of taking and regulation, while reflective of 18th and 19th Century understanding of government actions and of Nature, are totally obsolete in the context of modern understanding of geology and ecology. Create an account or login to post comments.
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