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Zoning, Planning & Land Use Section Website › Newsletters › Land Use Law Quarterly, November 2010 › Who Owns the Beach? Supreme Court Clarifies Rights to Land Created by Public Beach Nourishment Projects

Who Owns the Beach? Supreme Court Clarifies Rights to Land Created by Public Beach Nourishment Projects

Article Date: Thursday, November 18, 2010

Written By: Jim Joyce

On June 17, 2010, the U.S. Supreme Court issued a decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection1   that clarified the effect a public beach nourishment project has on the rights of private beachfront property owners. Since the decision was based in no small part on Florida state law, which differs in a couple of key respects from North Carolina law, its impact on activity in this state is somewhat unclear.

A Brief Primer on Littoral Property Rights
Beachfront, or littoral, property owners have a special set of rights by virtue of having the shoreline as a boundary of their property. These rights differ somewhat from state to state, but typically include the right to access the water, the right to reasonable use of the water, and the right to gains from the seaward movement of their property line.2  

The last of these rights underscores one of the more unique aspects of littoral property ownership: the property line is constantly changing. The boundary between private beachfront property and submerged lands held in trust by the state is the mean high tide line (also called the mean high water mark), an average of daily high-tide levels over a period of roughly 19 years. The natural build-up of sand on the beach (called accretion) and gradual recession of ocean waters (called reliction) can move the mean high tide line seaward, adding to the littoral landowner’s property. O n the other hand, littoral landowners also bear the risk of losing land to erosion.

Factual Background
At issue in Stop the Beach was a public beach nourishment project in the Florida panhandle. The city of Destin and nearby Walton County had taken steps to add 75 feet of dry sand landward of an existing 200-foot-wide beach. Under Florida law, before work begins on any public beach nourishment project, the state sets an Erosion Control Line (“ECL”), a static property line set at the mean high water mark prior to the project.3
  
A group of property owners along the beach where the project took place sued in state court, arguing that the ECL took away their right to benefit from accretion and reliction, as well as a right to remain in contact with the ocean, which the property owners argued was independent of the right of access. After the Florida Supreme Court ruled that the ECL statute was not a taking, the owners appealed to the U.S. Supreme Court, arguing that the Florida Supreme Court’s decision was itself a taking of their littoral property rights.

The Decision
In a unanimous 8-0 decision (Justice Stephens did not take part in the decision, as he owns property along the affected beach), the court rejected the landowners’ claims. The court looked to two key provisions of Florida law to decide the matter:

First, Florida common law gives the state, as the owner of submerged land, a right to fill that land and thus raise it above the water level.4 Next, as in number of coastal states, Florida’s common law establishes that sudden changes in the shoreline (called “avulsion”) have the effect of fixing the property line between the state and the private landowner at the high water line prior to the sudden change.5 Both the Florida and United States Supreme Courts reasoned that, since a landowner’s right to remain in contact with the sea can be interrupted by natural acts of avulsion, man-made avulsion (i.e., a beach nourishment project) should have the same effect.6 Because Florida law did not provide an explicit carve-out from the avulsion rule for events caused by the state, the court ruled that the private landowners’ right to gains from accretion and reliction was subordinate to the state’s right to fill submerged land, and thus there was no taking. With respect to the right of contact with the water, the court ruled that no such right had been explicitly granted by Florida law, nor could it exist as an independent right (and thus be the basis for a takings claim), without contradicting the avulsion rule.7  

Implications
Had the Supreme Court ruled that establishing a static property line was a compensable taking of property rights, public bodies around the country might have had to compensate property owners for the loss of littoral rights before or after undertaking beach nourishment projects, even if the project broadened the beach in front of the owners’ property.

Calculating the value of those rights would have presented a substantial challenge for the courts and for future beach nourishment projects as well. Even if the compensation due to landowners would not have been great in amount, the added threat of litigation and the additional hurdle of calculating and doling out compensation would have posed a significant additional obstacle to beach nourishment projects.

Implications for North Carolina
For projects in North Carolina, is it not absolutely clear that the Supreme Court’s decision has settled the issue of whether the imposition of static property lines act as a taking of property rights. As the court noted, the outcome of such a case is highly dependent on state law, and in North Carolina, the rules governing littoral property rights are not as clearly defined as they were in Florida. Although North Carolina law likely leads to the same result as Florida law, it gets there by a somewhat different path.
The two rules relied upon by the court, a state’s right to fill submerged lands and the rule fixing the seaward boundary of private property following an event of avulsion, may or may not apply in North Carolina.

First, North Carolina does not have a clear statement of the state’s right to fill submerged lands. However, most states do recognize such a right,8 and North Carolina common law characterizes littoral rights as qualified: our courts have found that both the right of direct access9 and the right to construct a pier or wharf10 are subject to reasonable regulation.

Second, the avulsion rule relied on by the Florida and United States Supreme Courts might not apply in North Carolina. No North Carolina case has explicitly repudiated the avulsion rule, but at least one commentator has suggested that the General Assembly has effectively done so by statute.11
  
Nonetheless, North Carolina coastal property rights are outlined and regulated largely in the General Statutes rather than in the common law. The set of rights pertaining to littoral property have only been mentioned in case law, once,12 but the separation between private and public trust property has been clearly defined in statute,13 as has a system for determining title to land added by several different processes,14 and a number of cases have upheld the state’s ability to place limitations on littoral rights.15

Thus, even though the Supreme Court’s rationale is of dubious application in North Carolina, it does not create an absolute right on the part of littoral landowners that would prevent North Carolina law from likely leading to the same result as Florida law.

In the end, with public beach nourishment projects playing an important role in maintaining North Carolina’s beaches and in facilitating development near the ocean, the Supreme Court’s ruling, to the extent that it impacts the interpretation of North Carolina law, may have been favorable for beachfront property owners in the Old North State.

Judicial Takings
The court also addressed, but did not resolve, the issue of whether a judicial decision could act as a taking of private property. Justice Scalia, writing for a four-justice plurality, argued that a judicial decision could be a taking of property, because the judicial branch, by declaring that an “established” property right no longer exists, is just as capable of taking property as any other branch.

The other four justices, in two separate concurring opinions, argued against such a concept of “judicial taking.” Justice Kennedy, joined by Justice Sotomayor, argued that the Takings Clause was a limit on the political branches’ authority to condemn property, a power not given to the judiciary; further, any judicial decision that wrongly eliminated an established property right could be challenged as a violation of the owner’s right to due process. Justice Breyer, joined by Justice Ginsburg, argued that allowing federal courts to declare takings by state courts would impose the federal judiciary in the process of making state property law, a matter more appropriate for the state itself.

End Notes
1. No. 08-1151, slip op. (U.S. June 17, 2010).
2. In Florida and some other coastal states, littoral landowners also have a right to an unobstructed view of the ocean. See, e.g., Thiesen v. Gulf, Fla. & Ala. R. Co., 75 Fla. 28, 58-59, 78 So. 491, 501 (1918).
3. See Fla. Stat. § 161.161.
4. No. 08-1151, slip op. at 25 (citing Hayes v. Bowman, 91 So. 2d 795, 799-80 (Fla. 1957)).
5. Id. at 26.
6. Id. at 27.
7. Id. at 28.
8. See Joseph J. Kalo, North Carolina Oceanfront Property and Public Waters and Beaches: the Rights of Littoral Owners in the Twenty-First Century, 83 N.C. L. Rev. 1427, 1476-79 (2005).
9. See Slavin v. Town of Oak Island, 160 N.C. App. 57, 60-61, 584 S.E.2d 100, 102 (2003).
10. See Capune v. Robbins, 273 N.C. 581, 588, 160 S.E.2d 881, 886 (1968).
11. Kalo, at 1441-42, argues that N.C. Gen. Stat. § 77-20(a) (fixing the seaward boundary of private property at the high water mark) and N.C. Gen. Stat. § 146-6(a) (giving littoral landowners the right to gains “by any process of nature”) represent a fully-formed statutory approach to natural changes in the ocean shoreline. This view of the avulsion rule may not answer the question of whether it applies in the context of artificial avulsion, but other subsections of § 146-6 likely do so. See note 14, infra, and accompanying text.
12. See Shepard’s Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 538, 44 S.E. 39, 46 (1903).
13. See N.C. Gen. Stat. § 77-20(a) (fixing the seaward boundary of private property at the high water mark).
14. See N.C. Gen. Stat. § 146-6 (providing for varying ownership of lands raised above the high water mark, depending on the cause of the raising).
15. See, e.g., Capune, 273 N.C. at 588, 160 S.E.2d at 886; Slavin, 160 N.C. App. at 60-61, 584 S.E.2d at 102; Weeks v. N.C. Dep’t of Natural Res. & Cmty. Dev., 97 N.C. App. 215, 226, 388 S.E.2d 228, 234 (1990).

Jim Joyce practices with K&L Gates LLP in Raleigh and can be contacted at jim.joyce@klgates.com .

Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.