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US Supreme Court Sanctions Erosion of Property Rights

By June 21, 2010 No Comments

June 18, 2010

There are days when one really has to question just how far America has fallen away from the ideals of our Founding Fathers.  Yesterday was one of those days. In a unanimous decision, the U.S. Supreme Court sanctioned the further erosion of property rights. The Court has essentially given the State of Florida carte blanche to alter the property boundary lines of ocean-front property owners and to turn all private ocean-front land into ocean-view property. In its ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., our nation’s highest court has once again failed to provide justice to individual citizens harmed by the actions of government.

While CPR can appreciate the complexity of the legal issues accepted for review by the US Supreme Court and its limitations in reviewing cases within the context of state law, state case law precedent and a very specific set of facts argued in the lower courts by the opposing parties, it is heart-breaking to see rulings like this one from our nation’s highest court.  The citizens who filed this lawsuit were in fact harmed and impacted by the actions of government. Government agencies changed their private property boundary lines and if that doesn’t represent a taking of private property rights – what is it then?

Prior to the government action (in this case, the beach renourishment project), these owners owned private ocean-front property with well-established property boundary lines reaching down to the mean-high-water mark. Hundreds of thousands of other water-front properties across America have similar MHWM boundaries. These properties are among our nation’s most valuable real estate because of this direct water frontage. As a direct result of a government action and subsequent state court rulings, these owners now own lands whose boundaries have been severed from the waterline; they have been given a new property boundary line set arbitrarily by the state (known as the ECL); and a stretch of public land or beach will now separate their waterfront property boundary from the water. Oceanfront property has been converted to ocean-view property. How can you effectively take away the “water” from “waterfront” property and say that a taking has not occured?

For owners and investors, there is a dramatic value difference between oceanfront and ocean-view property, but apparently physical boundary line changes with clear economic consequences are of absolutely no consequence to our nation’s highest court. They chose not to recognize an oceanfront owner’s right to have their property maintain contact with the ocean.

By treating the properties’ direct contact with the water as completely inconsequential, they somehow overlooked the fact that that direct contact was a very significant factor in the owners’ selection and purchase of the properties, not to mention the “investment-backed expectations” which are a key factor of consideration in most takings cases.

For non-ocean front property owners who may feel little commonality with those who do, just ask yourself how you would feel if you learned the U.S. Supreme Court had just fully sanctioned the ability of local and state governments to move your front yard property boundary line back onto your property and to establish that the stretch of land between your boundary line and this new line was now public property – without asking your permission or consent and offering you no form of compensation for this encroachment and diminishment of your land. This is exactly what occurred to property owners in Florida’s panhandle and which is now fully permitted to occur across all Florida.

Property owners across America should be outraged. They should also prepare to see this case thrown in their faces in a myriad of other ways as government entities use the Stop the Beach decision to expand their power over private property.

While we have witnessed an unprecedented erosion of property rights in the last few decades, we are on the cusp of the greatest era of property rights takings in American history, due in large part to the rise of the environmental movement nationally and its extraordinary influence on the current administration.

The Supreme Court has again swung the door wide open for government agencies to trample private property rights. In Florida, owners of ocean-front property with once private beaches should fully expect to see signs out their windows which read, “Public Beach – Coming Soon!

As with the infamous Kelo v. New London eminent domain abuse case, the Court had a perfect opportunity to check the power of government and to say loudly, “There are limits to government power and you just can’t treat American citizens this way.” They chose not to.

However, like the Kelo case, this national property rights’ case may have a silver lining. There are two positive aspects of this ruling:

1) The ruling opens the door to state-level legislative reforms to address the key issues which prompted the case – the absence of due process protections and compensation for property owners impacted by beach renourishment/restoration projects are what triggered the case. Just because the U.S. Supreme Court ruled that Florida’s Supreme Court did not err in supporting existing state law, does not mean that we have good public policy on the books today. We do not. Florida’s next Governor and state legislative leaders such as incoming House Speaker Dean Cannon and incoming Senate President Mike Haridopolos have before them a perfect opportunity to fix the bad law which triggered this case.

2) Four justices on the court joined in an opinion recognizing that the judicial branch of government is not insulated from the protections afforded to private property rights by the U.S. Constitution. This statement from the Court represents a positive development in the consideration of judicial takings arguments and puts America’s lower courts on notice that judicial rulings which eliminate established private-property rights can constitute takings. In the exact words of the Court, “a judicial elimination of established private-property rights that is foreshadowed by dicta or even by holdings years in advance is nonetheless a taking.”

To view the full decision: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf

This disappointing ruling will not end the conflict created by the current construct of Florida’s law regarding beach renourishment and restoration projects.

This ruling, combined with the environmental disaster impacting the Gulf of Mexico will continue to pit property owners against the State until the Florida Legislature addresses the fact that Florida property owners are not treated fairly under the current law. The Legislature may also have an urgent need address the issue of how beach restoration or renourishment efforts which are paid for or executed by third parties (such as BP) may proceed.  Undoubtedly, the same state law which failed to address property rights concerns may not have made adequate provision for dealing with this unexpected third-party payer scenario. Both must be addressed via immediate reforms. At a minimum, provisions should be added to allow individual owners to contribute private “fair-share” funds toward public renourishment projects and other options by which they can be allowed to maintain their existing MHWM boundary and still accomplish basic restoration goals.

As demontrated by the public reaction to the Kelo case and the rapid rise of the Tea Party movement, average citizens do understand government overreaches. An overreach is what triggered the Stop the Beach case. The owners felt their government had broken good faith with them by not respecting their property boundary lines. You can only push the American people just so far, before they begin pushing back.

It is circumstances like this, where we are witnessing government agencies blatantly altering property boundary lines with no accountability from our nation’s highest courts, which demonstrate the dire need for property owners to unite together and to begin the hard work of affecting change.

In two of its last three major property rights decisions, our nation’s Court of last resort has further empowered government over the people’s rights. When government can openly take away private homes and trample property boundary lines, just where do you believe that push for power will stop if these actions are not confronted by an outraged public?

THANK YOU FOR FIGHTING BACK!

CPR would like to take a moment to say thank you to the courageous citizens who filed the Stop the Beach Renourishment, Inc. complaint, who funded its journey up to and before the U.S. Supreme Court and the talented attorneys who worked on the petitions and amicus briefs. There is extraordinary virtue in fighting these national property rights cases. We have a civic and moral responsibility to continue to seek to right the wrongs being perpetuated against America citizens by government entities whose first focus should be protecting private property and individual rights.

JOIN THE FIGHT TODAY!

Turn your anger into action. If you believe property boundary lines should be respected and not be arbitrarily altered by government, we invite you to join a growing number of property owners who are standing together to promote the value of property rights and working to defend our collective rights.  The Coalition for Property Rights invites you to join as an official member or renew your membership today through our convenient online form available at: www.proprights.com/contribute/ or by a mail-in form available via this same link. For more information about our work or for details about individual membership or corporate sponsorship, please visit http://www.proprights.com/ or call 407-481-2289.

ACTION ALERT – ORANGE CO. PROPERTY OWNERS:

Join CPR supporting the property rights of an Orange County land owners group fighting for permission to use their land in a project known as “Innovation Way East.”  NIMBYs and environmental activists are actively campaigning to deny these owners the basic right to use their private lands.  Learn more about what’s at stake and help this owner by communicating with Orange County leaders via the attached convenient website:  http://orlandoinnovation.com/

UPCOMING “NO on 4” EVENTS:

ORRA’s “NO on 4” COFFEES. One of CPR’s partners in the fight to defend private property rights – the Orlando Regional Realtor Association –  is hosting a series of “NO on 4” coffee presentations at locations across Central Florida. CPR encourages its members to attend and bring guests unfamiliar with the serious threat posed by Amendment 4. Attendance is FREE, but RSVPs to kellief@orlrealtor.com are appreciated. To view the full ORRA coffee schedule, visit: http://www.orlrealtor.com/Main/Main.asp?CategoryID=21&SubCategoryID=1438&

    • June 24 (Thurs.), 9-10 a.m., Panera Bread,8600 Vineland Ave., Orlando
    • July 1 (Thurs.), 9-10 a.m., Panera Bread, 1117 Florida Mall Ave., Orlando
    • July 8 (Thurs.), 4-5 p.m., Friendly’s Restaurant, 12185 Collegiate Way, Orlando
    • July 15 (Thurs.), 4-5 p.m., Panera Bread, 2480 SR 434 West, Altamonte Springs
    • July 29 (Thurs.), 9-10 a.m., Panera Bread, 1210 S. International Pkwy., Lake Mary
    • August 19 (Thurs.), 4-5 p.m., Panera Bread, 1117 Florida Mall Ave., Orlando
    • September 9 (Thurs.), 4-5 p.m., Panera Bread, 696 E. Altamonte Springs Dr., Altamonte Springs
    • September 16 (Thurs.), 4-5 p.m., White Wolf Café, 1829 N. Orange Avenue, Orlando

JUNE 24th “COMMUNITY CONVERSATION” ABOUT AMENDMENT 4. The Central Florida Chapter of NAIOP is hosting a “Community Conversation about Amendment 4” on Thursday, June 24 from 4-6:30 p.m. at the Orlando Museum of Art. (Program 4:30-5:30, Reception 5:30-6:30). For more information contact Shannon Miller at 407-227-7461 or email at Shannon@naiopcfl.org.

Reader responses welcomed! carolsaviak@aol.com

Carol Saviak
Executive Director
Coalition for Property Rights
2878 S. Osceola Avenue
Orlando, FL 32806
407-481-2289
407-481-0834 fax
http://www.proprights.com/

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