Earlier this month the United States Supreme Court issued its much anticipated decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection. The case involved a property rights challenge to a Florida statute that can have the effect of radically changing access and adjacency to the ocean for beachfront property owners through government “beach renourishment”
The owners lost. Eight of the nine Justices participated in the case. They unanimously agreed with the Florida Supreme Court that the changes allowed by the statute were not contrary to the owners’ existing common law property rights. On the other hand, an opinion joined in by four of the Justices has potentially far reaching implications for restricting any court’s ability to render a decision that “rewrites” the common law in a way that would reduce an owner’s property rights.
Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, authored a powerfully written opinion that champions a principle they find under the Fifth Amendment “Takings Clause”. They opine that if a court, including a state Supreme Court, were to deviate from the recognition of a property right already established by the common law, the result would constitute an unconstitutional “Judicial Taking”. The other four Justices who participated in the case declined to follow this reasoning, stating that the analysis was
unnecessary to resolve the present case since all Justices agreed that the Florida Supreme Court had not departed from established common law.
The Scalia opinion represents a view just one short of the court’s majority. Two Justices explicitly oppose Scalia’s reasoning. Three Justices have not spoken on the issue. Ironically, despite the outcome adverse to the property owners who brought the case, the decision will likely serve as a beacon for property rights advocates that will be useful in future cases.