On the beach: SCOTUS, NJ Supremes hear eminent domain cases
Today the Supreme Court of the United States and the New Jersey Supreme Court heard oral arguments on similar issues in two different cases: Who has title to riparian land created by natural accretion of sand or a public works project to replenish beachfront property? In Stop the Beach Nourishment v. Florida, the issue is whether the legislation coupled with the Florida Supreme Court decision constitutes a judicial taking of private property without compensation; In City of Long Branch. v. Liu, property has already been taken, but the trial court ruled that Liu could not be compensated for the land created by beach replenishment.
Beaches in many states are the recipients of oceanfront accretion as a result of beach replenishment projects. Most states, including Florida and New Jersey, set the property boundary at the mean high water line: The state owns the area between the mean high water line and the low water line. Up to this point, any natural or man-made accretion that changes the mean high water line belonged to the riparian owner. The state of Florida wants to make this additional land public land. The Florida Supreme Court, in a 5-2 decision, agreed. See SCOTUS Wiki for all the documents in this case and our prior blog post, "SCOTUS grants cert in beachfront renourishment case."
In order to rule in favor of the Florida property owners, at least 5 of the 8 justices hearing the case need to agree with the position of the property owners who are contesting the Forida legislation and the Florida Supreme Court decision. This would require an in depth review of Florida law in order to overrule the Florida Supreme Court -- a big step, considering the deference usually accorded state courts in interpreting state law. But the Florida property owners argue that the court below misinterpreted long standing Florida law with respect to the ownership of beachfront property.
Justice Stevens did not participate because he owns property in Florida. The transcript of the oral argument shows Justices Scalia, Alito, Thomas, and possibly Kennedy, sympathetic to the property owners. Chief Justice Roberts also seemed favorable to the property owners position in questions directed to Edwin Kneedler, deputy solicitor general from the Department of Justice who filed amicus in support of the respondent Florida Department of Environmental Protection.
The New Jersey case, City of Long Branch v. Liu concerns several issues. See blog post, "Eminent domain at the mean high water line." The New Jersey Supreme Court spent most of its time questioning Liu’s attorney, Peter Wegener, regarding the title to the additional 225 feet of beachfront land, which accrued to the property as a result of a 1998 beachfront replenishment project undertaken by the Army Corps of Engineers. Liu's property was condemned in 2001 as part of the Beachfront North redevelopment project implemented by Long Branch.The issue is whether this land belonged to Liu and should have been valued in the underlying condemnation case, or was this property “state land” belonging to the public and entitled to public use under the “public trust doctrine.” See our blog,"Eminent domain and the public trust doctrine."
New Jersey law until this point has held that the riparian owner owns to the mean high water line. The line changes over time due to erosion and accretion, both natural and man-made. Justices Rivera-Soto and Albin sharply questioned Mr. Wegener on this point. Wegener forcefully argued for Liu’s ownership of the property, subject only to the public access as established in prior court opinions. (See Bubis v. Kassin .) An opinion will mostly likely be decided after SCOTUS issues its opinion in the Florida case.