Sunday, May 21, 2006

State Imposition of Erosion Control Line a Taking Because it Extinguishes Riparian Rights

Beach renourishment is, obviously, a big deal in Florida. So are riparian rights, which include the right to accretion or reliction at the shoreline, and the right of contact with the water.

Before a beach renourishment gets approved, the Florida statutes require that an "erosion control line" be established. This line demarks the point between the upland and the mean high water line (at the time). Under the statute, once established and recorded, it destroys the upland owner's right to accreted lands (including the right to use them for density).

In this opinion, in Save our Beaches v. DEP et al, The 1st DCA held that this destruction of riparian rights is a taking, and that because the statute makes no provision for compensation, it is an unconstitutional taking.

It gets a bit complicated after that, at least for non-admin lawyers. The issue in the case was the issuance of a permit to use sovereignty or submerged lands for the beach renourishment project, which requires that if riparian rights are to be harmed, the state must use eminent domain. That hadn't been done, and the Administrative Law Judge issued the permit, because of the effects of the statute (which was presumed constitutional). Having found the statute unconstitutional, the Court overturned the issuance of the permit. It did not invalidate per se the statue. But it did invalidate the recordation of any deeds or survey showing the line, if those instruments showed a seaward boundary different than the property owners' deeds.

I think this means that any riparian owner on the beach or gulf whose property has been subjected to the recordation of an erosion control line can sue to have that line erased from any record, and clear any title issues to property seaward of the line.

HOWEVER, accretion historically applies to natural processes. What we DON'T know is what happens to the rights of the owners of what was waterfront property where there has been a beach renourishment project that has artificially extended the mean high water line seaward of the historical mean high water line.

Lots of fun, folks!

No comments:

Post a Comment