While there are many obstacles facing local beach nourishment projects, i.e., funding, source of sand, potential impacts to birds and turtles, and public opposition, the question of the constitutionality of the State statute which authorizes such public beach projects will no longer be an impediment to moving forward to restore area beaches.
Since 2006 when a decision of the Florida First District Court of Appeal finding the Florida Beach and Shore Preservation Act to be unconstitutional was appealed to the Florida Supreme Court, local governments have been uncertain regarding the legal status of their proposed beach nourishment projects. When on December 18, 2008 the Florida Supreme Court refused to reconsider its decision rendered on September 29, 2008, the Court’s determination in Walton County v. Stop the Beach Renourishment, Inc. upholding the constitutionality of the Act may now be considered final.
In substance, the Florida Supreme Court upheld the constitutionality of the Florida Law which authorizes the government’s unilateral placement of sand between an upland beachfront property owner’s property boundary and the waters of the Gulf of Mexico, cutting off the property owner’s contact with the water. The Beach and Shore Preservation Act mandates that the upland beachfront property owner’s legal rights of ownership terminate at the pre-fill shoreline, recorded as the Erosion Control Line, and that the nourished beach between the Erosion Control Line and the new water line shall henceforth be public lands.
The Florida Supreme Court held that under the Act, while the upland beachfront property owner would retain traditional riparian/littoral rights of ingress, egress, view, boating, bathing, and fishing, local governments may cut off a property owner’s direct contact with the water without any recourse to the upland property owner. The Court held that provided the upland beachfront owner still has access to the water, the owner does not lose any protected legal interest when contact with the water is eliminated by a beach nourishment project.
In addition to resolving a hotly contested dispute of significant interest to local governments and beachfront property owners, the Florida Supreme Court’s decision is extremely helpful as a comprehensive summary of Florida Law regarding riparian/littoral rights. It is for that reason that I highly recommend all real estate professionals take a few minutes to read the decision.
A copy of the full decision can be found by clicking on following link: Florida Supreme Court Decision Document [PDF].