I recently completed a preview of Stop the Beach Renourishment v. Walton County, an important property rights case which was argued today, for the ABA Supreme Court Preview. It doesn’t seem to be up on their website yet, but I have posted it here. Below is a brief excerpt:
Under Florida’s Beach and Shore Preservation Act…, the state government establish “renourishment” projects to restore waterfront land that has become “critically eroded.” Once the projects are complete, the Act gives the state title to any newly dry land that has been cleared as a result of the project’s pushing back the waterline. This deprives waterfront property owners of their previously existing right to ownership of land up to the “mean high waterline” (MHWL). This is exactly what happened to the six waterfront property owners in Florida’s Walton County, whose holdings abutted a renourishment project established in the area. The property owners formed a group called Stop the Beach Renourishment, which is the petitioner in this case….
The Florida Supreme Court ruled against the property owners, holding that state law did not give them the right to
own all property up to the new MHWL created by the project.The property owners now argue, in the U.S. Supreme Court, that the Florida court decision amounts to a “judicial taking” that deprived them of property rights through a sudden and unexpected revision of state law by the state judiciary.
Previous precedents hold that even a small “physical invasion” or occupation of a landowner’s property by legislation or executive action is a taking that requires compensation under the Fifth Amendment, which mandates that “just compensation” be paid whenever property is taken for “public use” …. However, the Supreme Court has never ruled on the issue of whether a deprivation of property that results from a state court decision reinterpreting state law might count as a taking. Thus, it is unclear whether the Takings Clause applies to so-called “judicial takings.” The petitioners argue that the Supreme Court should hold that judicial takings do exist, and that they require compensation under the Fifth Amendment. As the petitioners’ brief puts it “[i]f a state, through its legislative or executive branches, cannot violate theFifth Amendment by taking property without paying compensation, why should the judicial branch be allowed to do so?”
Ben Barros at PropertyProfblog has a thorough analysis of today’s oral argument. I generally agree with his conclusion that most of the justices agree with the idea that “judicial takings” exist, but that there probably isn’t a majority in favor of the claim that one occurred in this case. If the Court does conclude that judicial takings exist, the really important part of the decision will be the standards the majority sets up for determining when one has occurred, a point I discuss in greater detail in the last part of the ABA Preview article.
UPDATE: There is a small but unfortunate imprecision in my ABA preview article, which says that “Under Florida’s Beach and Shore Preservation Act…, the state government establish “renourishment” projects to restore waterfront land that has become “critically eroded.” In reality, the Act gives the state, in cooperation with local governments, the power to establish such renourishment projects, a power that is expected to be used. But the state is not actually compelled to establish projects in every waterfront area that has become “critically eroded.” It would have been more accurate and less confusing had I used “given the power” or “permitted” rather than “required.” This mistake doesn’t relate to the legal issues at stake in the case (whether the state was required to act as it did under the Act has no effect on the question of whether a taking occurred). But I regret my poor choice of words nonetheless.
UPDATE #2: A transcript of the oral argument is available here.
dave h says:
This case seems a bit weird to me, possibly as a result of using MHWL to define property borders. If the state adds more land, it makes sense that they would own it. After all, if they built an island, the nearby property owners wouldn’t have a claim on that, would they? However, I can see two exceptions: first, if the state is claiming land beyond the previous MHWL, or second, if the MHWL itself has moved over the years, so the property owners used to have the land now claimed by the state (or at least they owned its previous incarnation). Even in that case, however, the owners didn’t do anything to prevent the land from being lost, or to put it back. Allowing the state to do the work to recreate the land, and then claiming that they’re taking it from you, just doesn’t make any sense to me.
I guess I’m in agreement with most of the justices (at least as speculated).
December 2, 2009, 7:22 pmAlyssa says:
I agree with Dave H. How is this different from the state, say, lifting a zoning prohibition in front of an otherwise “waterfront” property and erecting a building on the vacant land? The state is allowed to “take” views without compensation. If the plaintiff owned lakefront property, couldn’t the state just decide, under the police power, to fill-in the entire lake for the health and safety of its citizens?
And I can’t see Loretto Teleprompter applying b/c there’s no physical invasion on the plaintiffs’ land.
December 2, 2009, 7:51 pmne says:
is the assessment of the property owners taxable land reduced by the state’s action
December 2, 2009, 8:40 pmED Maven says:
Judging from the way the oral argument went today, it’s a case of what the New Yorker magazine would call clear days on the property rights scene. Stevens recused himself, being a Florida resident, but it sounded like the others didn’t need his help.
Which raises the question: why did SCOTUS grant cert?
December 2, 2009, 8:46 pmjosh bornstein says:
I know there are other countries (Hong Kong comes immediately to mind, and I think there are others), where they ran out of land, and they just added more land by filling in earth. So, buildings that were on the water’s edge ended up being inland, with other buildings now between them and the water (constructed on the new ground). Ilya, did foreign law inform any of the parties, or, any courts that heard this case? Interesting issue, and one with merits on both sides.
December 2, 2009, 9:27 pmDjDiverDan says:
Dave H & Alyssa, It is quite true that in this case, the State isn’t really taking any land that previously belonged to the Petitioners; however, by adding additional land (which is public land) between the old MHWL and the new MHWL, the State is materially altering the characteristics of land retained by the Landowners. Prior to Florida’s “beach renourishment” project, all of these landowners had valuable waterfront property, with exclusive access to the beach below the MHWL. Now, the landowners no longer have that exclusive access — and if the state were to decide to, say, put in a road on the newly reclaimed land, they might have no access at all. Take an extreme example – say the State of California decided to reclaim additional land to expand Malibu, and was able to completely fill the ocean adjacent to several very expensive waterfront estates out for say 2 miles. This reclamation would not involve any physical taking; the Malibu estates would remain the same physically as before, and the owners would continue to own the exact same amount of land – they would just no longer be Beachfront Property – they would now be 2 miles from the ocean. A state action which doesn’t physically take any property can still materially and adversely affect the Property’s characteristics and value. The question is, was the Owner’s exclusive beachfront access a legal right incident to their property; if so, and if that legal incident was valuable (trust me, it was valuable) and was destroyed by State Action, then there was a taking.
December 2, 2009, 9:41 pmIlya Somin says:
Ilya, did foreign law inform any of the parties, or, any courts that heard this case? Interesting issue, and one with merits on both sides.
I haven’t seen it mentioned in either the lower court decision or in the parties’ briefs. However, I haven’t read every single amicus brief, and it could be discussed in one that I didn’t read.
December 2, 2009, 10:01 pmJohn Burgess says:
DjDiverDan: FL state courts have rules that access to the water is an important part of ownership. The following is excerpted from a 1985 Advisory Legal Opinion from then-Attorney General Bill McCollum:
December 2, 2009, 10:31 pmDavid Schwartz says:
The problem is, but for the State depriving them of a specific littoral property right, the newly-created land would have been theirs by right. That is, they own both some physical property and a bundle of related property right, including the right to any new land should the MHWL move. This private property right was taken from them.
December 2, 2009, 10:43 pmT. Gracchus says:
So the state should make gifts of land to these landowners? The problem would seem more to be that the state is giving away property — but for the state action there would be no newly created land, and, almost as much to the point, they were apparently too lazy to keep their land from washing away in the first place. Which suggests the preview is not as clear as one might like, as it is very hard to get hold of what is at issue. Maybe read the whole thing.
December 2, 2009, 11:07 pmDavid Schwartz says:
The State could apportion the costs to those landowners through special assessments, or use some similar mechanism. But your argument is much the same as saying that if improved police protection increases the value of my property by 20%, the State should be allowed to take 20% of it. Their property rights specifically included the right to own any property created by just this mechanism.
December 2, 2009, 11:20 pmHarry Eagar says:
One of the justices (sorry, didn’t hear which) said he thought waterfront property owners in every other state would be surprised to learn that their property did not touch the water.
Not in Hawaii. No private property here touches the water. The state owns to the MHHW mark (as indicated by wrack or vegetation or both), and if it moves inland, the public property moves with it.
December 2, 2009, 11:37 pmJay says:
Harry–Maybe I’m misunderstanding, but doesn’t that mean that the private property does touch the water, at least when it’s at high tide?
December 3, 2009, 12:21 amanon says:
Call me a communist, but individuals should not be able to own land down to the waterline. The beaches should belong to the people. You want to put a nice picket fence in front of your beachfront home, go for it. You want to prevent people from using the beach, no way.
December 3, 2009, 2:24 amBaronger says:
Doesn’t seem to be a taking, so much as an addition.
In Hawaii, volcanoes regularly add new land through natural processes.
Beaches are never stable, they erode and in some cases they accumulate through natural processes.
The MHWL is never stable over time.
The question seems to be is natural vs. manmade changes different.
Also is the MHWL line a fixed determination made at the original survey, or if it will change to reflect change in the environment.
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December 3, 2009, 3:21 amT. Gracchus says:
It is an historical question whether the property rights “specifically included the right to own any property created by just this mechanism” and I admit that I am a little doubtful. When did the state of Florida begin creating land? I suspect that the relevant property right(s) predate such efforts. Values aren’t objects.
December 3, 2009, 4:52 amArkady says:
Somebody help me out here. The state, using taxpayer funds, seeks to prevent beach erosion of the beach fronting the property. That is, the state spends public funds to protect the beach in front of the property and thus to protect the property itself. Now the owners, having already had their property protected by the state, can claim that said protection of their property amounts to a taking, and thus, in addition to state funds already spent–for their protection–demand that the state compensate them for protecting them.
Do I have that right?
December 3, 2009, 6:54 amDavid Schwartz says:
What they are saying is that the taking of their property constitutes a taking of their property.
For example, if I lived in a high-crime area, the State might take a piece of my property to build a police station. You can make the same argument: “Now the owners, having already had their property protected by the state, can claim that said protection of their property amounts to a taking, and thus, in addition to state funds already spent–for their protection–demand that the state compensate them for protecting them.” See, it applies just the same.
The question is, was property taken? If yes, you have a problem. If no, you don’t. Here, you have a taking because their right to own the property to the MHWL was taken from them. The whole point of having this specific, valuable right is so that you can gain property if the MHWL moves.
It’s the State’s job to protect their property. That’s what they pay taxes for. If they have to take some of their property to protect their property and the property of others, they have to compensate them for that. That’s what the takings clause says.
The point is, one of the rights they had was to increase the size of their property through this precise mechanism. The State took that property right away from them, and it was quite a valuable right.
December 3, 2009, 7:52 amArkady says:
Well, let me ask you this. Suppose the state had done nothing. And instead of Stop the Beach Renourishment, the homeowners had formed Start the Beach Renourishment, and under the theory that “It’s the State’s job to protect their property”, they sued successfully to compel the state to renourish the beach in front of their property. Are you saying that they could then turn around and demand compensation from the state under the takings clause? That they could compel the state to spend taxpayer funds to protect and then say, “Oh, and yeah, you have to pay us, too”? Doesn’t that sound like double-dipping?
December 3, 2009, 8:40 amSteve says:
The plaintiffs are basically asking to constitutionalize stare decisis. It strikes me as fairly ridiculous.
I guess if a state court rules in my favor on a boundary dispute, and then the appellate court reverses, I’ve suffered a taking. At some point the concept of sacred private property rights has to butt up against the fact that state law defines the extent of private property rights in the first place.
December 3, 2009, 9:23 amdave h says:
Look at it the other way. If worsened police protection decreases the value of your property by 20%, does the state owe you 20% of the value as a taking? In the current case, the state is only taking property that did not exist, and therefore was not theirs, before they added the land.
This argument only exists because the property is defined in a dynamic way. The only question is whether the state can ever change that definition – basically whether it is important that the state has deprived the property owners from their opportunity to expand their physical property by adding to the beach at some future date.
By the way, did they sue to stop the program in the first place, as the name implies, or did they wait until beach was added and then sue?
December 3, 2009, 9:29 amegd says:
If a natural disaster destroys my house, and the state, through some emergency spending provision, decides to rebuild my house for me, I do not expect the state to then take title to my house.
It’s the same situation that you’re proposing.
Whether the state has an obligation to preserve the MHWL (or rebuild my house after a tornado strikes) is a different question, and one I think should be answered “no.”
December 3, 2009, 9:32 amArkady says:
I’m not sure this is apposite, btw. In the police station case, the benefit is to the public at large. In the beachfront case, the benefit extends, not to the public at large, but only to a small group — a small group intent on making sure the benefit does not extend to the public at large.
December 3, 2009, 9:47 amDavid Schwartz says:
They’re not saying “you have to pay us”. They’re saying “if you want to take away our property rights, then you have to pay us”. If, in your hypothetical, the State does not take away any of the landowners littoral rights but instead simply improves its own submerged lands, then obviously there would be no taking.
December 3, 2009, 9:49 amJMA says:
Reading through this, I have to wonder how many of these comments are based on mere jealousy of the fact that these people have (had?) beachfront property.
Let’s take the beach out of the equation. In order to help dust storms and wind erosion of a field (belonging to you and situated in front of your house), the state plants a substantial number of trees along one side. They then claim the land they planted the trees on. I’m thinking, given that the exceptions and excuses made for the state’s actions in the comments above do not seem to apply, this example would make most people definitively grumpy if it were to happen on their property.
Someone is going to point out that the state is not taking land from the beachfront owner because said owner did not have the land to begin with. The state has, however, moved the property line in both cases: the field’s border has been moved, and the beachfront property owner’s property line now no longer falls at “mean high water level,” but at “the back side of the public land between their house and the water.”
Is everyone here really that ok with receiving “state protection” without lube, or are some of us just grouchy because our back yards don’t look like a Corona commercial?
December 3, 2009, 10:03 amDjDiverDan says:
Seems like many of the posters here are making the same mistake we lawyers were disabused of in our 1L Class on Property Law — assuming that the word “property” means the tangible thing. When lay persons talk about “my property”, they are referring to things – like “my car” or “my house” or “my land.” But, from a legal perspective, the term “property” means the whole panoply of legal rights which flow from any particular form of ownership. In the Florida case, according to the Petitioners, fee simple title to waterfront property included NOT ONLY the right to build their house and exclude others from their land, it ALSO included rights with respect to the adjacent waterway – like the right to own ALL of the land up to the MHWL, whereever that line may stray from time to time; if the MHWL moved inland, their land area became smaller, if it moved outward, for whatever reason (like maybe the last Hurricane dumped thousands of tons of sand on their beach, moving the MHWL several feet oceanward), their land area increased. Their “Property Rights”, from a legal perspective, include this absolute right to have the MHWL as a part of their boundary, as well as the right to exclusive access (across their own land) to the beach beyond the MHWL. When state law changes, whether by legislative action, or by judicial action, to substantially reduce the “bundle of rights” the owners have in their land, that can constitute a taking – it isn’t necessary for the State to seize possession of some area of land within the boundaries of their ownership; if the State destroys rights they had with respect to the location of the boundary (i.e., the right to own up to the MHWL) which materially and adversely affects the value of their ownership, that is a taking.
December 3, 2009, 10:23 amThe Unbeliever says:
The project overall is a benefit to the state at large. Check here for a listing of all the renourishment projects going on in FL; for a dramatic picture of how much coastline can be added by these projects, this one is good (though unsourced). This is not a case of government trying to bump property values for a small number of private homeowners.
So even though the entire state benefits, if specific property owners experience a loss of property and/or access rights through the project, why should they not sue to recover those rights?
December 3, 2009, 11:34 amSteve says:
When state law changes, whether by legislative action, or by judicial action, to substantially reduce the “bundle of rights” the owners have in their land, that can constitute a taking — it isn’t necessary for the State to seize possession of some area of land within the boundaries of their ownership; if the State destroys rights they had with respect to the location of the boundary (i.e., the right to own up to the MHWL) which materially and adversely affects the value of their ownership, that is a taking.
Really? So whenever the resolution of a boundary dispute is reversed on appeal, the state owes money to the losing party? “Until that judicial decision, my boundary extended all the way to here!”
The concept that the owner previously had rights up to the water line isn’t some God-given definition of property; they only “own” that soggy portion of the property because the state previously said they do.
December 3, 2009, 11:40 amDjDiverDan says:
Steve – No – that is just silly. Unless, of course, the Trial Court, in fixing the boundary line was correctly applying well established state law, and the Appellate Court decided to suddenly change the law – THAT would be a judicial taking.
Well of course — there is no “god-given” definition of property; ALL property law is a matter of governmental fiat. So what? If the government previously said you could own (and drive) your car as long as you could keep it operational, but then suddenly changed the law so that any car with more than 100,000 miles on the odometer (older cars are less safe and cause more accidents) could no longer be driven on public streets and had to be destroyed, would you claim that change in law was not a taking, because the government has the power to change property law and property rights at its whim? The 5th Amendment says otherwise.
December 3, 2009, 12:04 pmSteve says:
Like I said, you’re trying to constitutionalize stare decisis.
December 3, 2009, 12:49 pmHarryEagar says:
DJ DiverDan sez: ‘Their “Property Rights”, from a legal perspective, include this absolute right to have the MHWL as a part of their boundary, as well as the right to exclusive access (across their own land) to the beach beyond the MHWL.’
Not in Hawaii, which I will agree is a freak, with its coastal law rooted in a non-western outlook and KIngdom law. However, I believe your point here about property rights does not apply in Virginia, either.
From my recollections of many decades ago, in Virginia whether your property reaches the water depends upon the casual and inconsistent ways in which land grants were engrossed in the 17th c.
December 3, 2009, 12:55 pmCarl The EconGuy says:
DjDiverDan has this right, I think. Private access to the water is what English medieval law called an “incorporeal thing” that can be taken without invading the property. It may be incidental to the property, but it is a different thing entirely from the property itself.
Two questions. One, what do the property deeds say? Probably that the property extends to the MHWL. So there’s one item. When the MHWL changes, as it sometimes does for natural reasons, the size of the property changes, but the valuable private water access does not. That works when land erodes or expands.
Two, suppose a private corporation, at its own expense, filled in the shoreline, and then claimed the water access rights. Would any court rule in the corporation’s favor? I think that question answers itself.
So, why should the state be treated differently than a corporation in this case?
December 3, 2009, 12:58 pmsecond history says:
It sounds like that if the state loses it would be to their benefit not to restore beaches, or if a property owner requests restoration, to have the owner sign over any additional land to the state.
December 3, 2009, 1:01 pmBrian K says:
What a way to start an argument! as we all know a surefire way to gain credibility is to call your opponents immoral bastards.
Your analogy clear fails. using your analogy, the government planted the trees and then is now claiming ownership of the trees. in this case, the government created new land. the beach washed away and the government went in and added beach. once you pull your head out of your rearend, you realize what the government is doing here is not odious at all.
December 3, 2009, 1:12 pmDjDiverDan says:
Yes, Harry – property rights vary from state to state. As long as the State is simply following well-established property rights, there is not a problem. Your “property rights” are whatever the State said they were when you bought the land – whether that included water rights or riparian rights, or limitations on your use or development. Water rights vary from state to state – in general, the Western drier states are much more restrictive on your use of water (you cannot deprive downstream users of their fair share of water) than the Eastern seaboard states, where water scarcity is rarely a problem. Even mineral law varies widely – in Texas, one can sever mineral rights from the surface and convey just the mineral rights in perpetuity, whereas Louisiana has a doctrine called “liberative procription”, where if the owner of the mineral rights does not develop the rights (i.e., by drilling an oil or gas well and maintaining production) within ten years, the mineral rights revert to the surface owner. This difference in State property law can cause real interesting questions; I had a case where the surface owner of land in East Texas (right on the Sabine River) severed the mineral rights in a deed given to an oil company in 1923. That oil company never drilled a well on the land, but just kept it in inventory, so to speak, for later development. By the 1950s, the Sabine River moved to the west, and land which was once in Texas (where a permanant severance of the minerals from the surface is permissable) became part of Louisiana by virtue of the change in state boundaries. In Louisiana, once ten years had passed, the mineral rights reverted to the surface owner, and some 40 years later, with still no development, the surface owner leased the oil & gas rights to my client. The oil company, which thought it owned the minerals outright, threatened suit – it came as a real surprise to them that their “permanent” rights to that undeveloped oil & gas had evaporated. But this was no judicial taking, as Louisiana was just following well established property law. The oil company had ten years after the land became part of Louisiana to develop those minerals – it didn’t, so it lost the rights.
December 3, 2009, 1:24 pmDavid Chesler says:
Did the Sabine River move gradually or abruptly? IANAL but I understood it makes a difference: If one shore erodes and the other accretes, the boundary moves, but if the river changes course the boundary does not, and the now-Oxbow section remains what it was though now separated by a river from that.
When they say beach renourishment I’m imagining it’s not a convoy of dump trucks filled with sand, but some alteration of the longshore currents so the beach grows instead of shrinking.
What about reclaimed land? If I own beachfront property may I hire those dumptrucks to build out my own property to the new MHWL? (There used to be bulkhead and pierhead lines on maps, I suppose they come into play.)
December 3, 2009, 1:48 pmmischief says:
I won’t call you a Communist. For all their faults, I can’t imagine Communists coming up with something as illogical as that.
Why beaches? Why not forests, or mountains, or wildflower meadows? Why should “the people” own the beaches? Especially given the obvious problem: there is more desire for waterfront land than there is waterfront land to sate it. Private property gives us a way to manage it.
December 3, 2009, 3:27 pmDavid Schwartz says:
The biggest differences are that the State can argue that it’s simply improving its own submerged lands and the State can argue it’s simply recovering from past avulsion due to hurricanes. Both of these actions have historically been permitted under common law.
December 3, 2009, 5:45 pmAnthony says:
The question at hand is whether, in fact, what was taken was their property to start with. If I live in a house with a nice view through my neighbor’s property, and my neighbor raises a giant ugly monster of a house such that I no longer have a view, my property has lost value, but it’s not at all obvious that what was lost was in fact mine to start with (though I might have other grounds to object, such as zoning violations).
Now, it looks like there is Florida precedent that treats beach access as actually being part of a piece of property (in which case removing that access is a taking), but without doing a search I couldn’t say how consistent that precedent is, and certainly the law in question doesn’t seem to consider beach access to be part of your property.
December 3, 2009, 6:30 pmDavid Schwartz says:
Anthony: The law in question had a “saving clause” that said that if anything done under the law considered a taking that required compensation, the property owner would be compensated. So you can’t challenge the law on the grounds that it violates the takings clause — it incorporated it.
So the question is whether the law took anything and if so whether it took the type of thing that required compensation. That would have to be a judicial determination.
In this case, what the law did was change the logic of the property boundary. Previously, it was the MHWL and therefore the deed granted the right to have the property touch the water.
This is not analogous to a change elsewhere that affects you indirectly.
What the courts held was that the right to extend to the MHWL and the right to have the property touch the water was “really” just the right to beach access, and since that wasn’t taken, there was no taking. (The law guaranteed the property owners beach access.)
The property owners response is that this takes from them in two ways:
1) A right under law to access is not the same as a right by deed. For example, owning a house is very different from having the legal right to access a house.
2) Their deeded, settled right to gain property by natural accretion was taken from them.
(There are, of course, responses to these arguments. I’m not sure which side I agree with. But it is almost indisputible the law did take away their deeded property right to accretion and did change the legal definition of their property boundary and thus will change its physical boundaries.)
December 3, 2009, 8:11 pmPeter Shore says:
In Florida no one owns property to the waters edge, no one. There are no “private” beaches in FL with “exclusive access” to the beach, period. However, some may try to make sections of beach private by inhibiting access to those beaches from the public. I have not seen anyone define what the Mean High Water Line (MHWL) which is is an integral part of this argument. The MHWL is the intersection of the tidal plane equal to the average height of the high waters over the 19 year tidal cycle. Every 19 years the MHWL along with other tidal planes are recalculated (MLWL, MSL, etc…). So beachfront property owners own out to the MHWL that does not mean their property touches the water. The homeowners had what they considered to be a private beach, beautiful views, no towels to step over, no John Q. Public. This was how things were. Then a hurricane comes along and erodes the beach. It is gone, the MHWL is now on their back porch step but they still have beach front property and access to the water, the State land is still seaward of that and in a sense everything is fine. An Erosion Control Line is established, which the State has a right to do and Now, as has been done for years in FL to protect upland property, the State renourishes the beach with probably some County, some State, and some Federal funds. The beach was eroded and the MHWL was pushed back, the ECL established that anytime erosion occurs you will retain up to the ECL. The beach was renourished and now the homeowners are upset that there is more dry beach that John Q. Public can put his towel on. The homeowners still have access, just as it was before, they can still walk out of their back porch to the water and fish, swim, kayak whatever. This “taking” argument appears to be some ply to maintain what they thought was their own “private” beach, which do not exist in FL.
December 11, 2009, 11:55 amPeter Shore says:
FYI
Erosion Control Line and Mean High Water Fact Sheet
(http://www.cityofdestin.com/clientuploads/Documents/beachinfo/May2008_restoration_infoECLFactSheet_Website.pdf)
Mean High Water Line
• Mean high water (MHW) is an elevation established based upon the average height of the high tide over a 19-year period.
• The mean high water line (MHWL) is a survey of the MHW elevation across a property at the date the survey was conducted.
• The MHWL is established in accordance with accepted surveying practices and principles and is reviewed and approved by the Florida Division of Surveying and Mapping.
• The MHWL is the proposed ECL.
Erosion Control Line
December 11, 2009, 12:20 pm• An erosion control line (ECL) is required prior to the construction of a beach restoration project (161.141, Florida Statutes).
• The ECL is established at the mean high water line, recognized in Florida as the boundary between private upland property and submerged state owned lands (161.161 (5), F.S.).
• There is no taking of private lands through the establishment of an ECL (161.141,F.S.).
• Upland property owners will continue to enjoy all of their common-law riparian rights (161.201, F.S.).
• No structure shall be allowed to be erected upon the newly created beach except those necessary for erosion control (161.201, F.S.).
• No activities shall be allowed on the newly created beach that may be injurious to the upland property owner (161.201, F.S.).
• Any additions of sand to the upland property landward of the ECL shall remain the property of the uplands owner (161.141, F.S.).
• An erosion control line can be repealed if the beach restoration project is not constructed (161.211(1), F.S.).
SMP For 'Kahuna' says:
Let me ask this question; “Do any of you believe or know factually if the Supreme Court Justices really understand and perform enough due diligence in the process of renourishment motivation factors politically and do they have a protocol for verification of data and studies each state utilizes or ‘funds’ to obtain federal government financing for beach renourishment projects when an individual state requests these government funds?” I can tell you this FOR FACT: the State of Texas needs to be held accountable for their erroneous information provided to obtain government funds on others private property that has never eroded nor received funds when the state obtains them. Despite the fact, the state obtains these funds all the while we pay taxes and operate a business where it’s historically an accreting beach used as a ‘borrow site’ often. Does any one think about the havoc wreaked when inaccurate data is used by a state to receive these funds and the private property owner isn’t made aware until they have a need to obtain funds for upkeep? This is fraud! Then, when they get caught and must pay they refuse to and continue to defraud the federal government for more money and not allocate where it was supposed to be allocated?!?!? What other state tells local agencies to “ignore the property owners rights; just take the over the property, we’ll defend you in court if they sue?”
May 14, 2010, 5:40 pm