September 23, 2010 08:57
Last December 9 was the height of coincidences. Both the United States Supreme Court and the New Jersey Supreme Court heard oral arguments on the same day in beach replenishment cases. The fortuity did not continue. Stop the Beach Renourishment, Inc. v. Florida was decided by the U.S. Supreme Court in June. It took the New Jersey Supreme Court over three months longer to decide City of Long Branch v. Liu, where the opinion came down just this past Tuesday. Nevertheless, both decisions affirmed that beachfront ownership law would be determined based on common law rules. More significantly, the State's interest in control of the beaches was found preeminent.
In Stop the Beach, the Supreme Court considered the following facts: shorefront property owners in Walton County, Florida, for many years had enjoyed unfettered access to the warm waters of the Gulf. As part of its efforts to preserve Florida's beaches, the State had renourished (pumped tons of sand) onto the homeowners' beach, and then claimed that land for Florida. In legal terminology, the property owners' property line changed from the common law mean high water line to a statutorily established erosion control line. In other words, beach front property now meant that you fronted on a beach, rather than fronted on the ocean. The homeowners challenged this development as an unconstitutional "taking" under the 5th and 14th Amendments to the Constitution.
While the Court could not come to agreement on the meaning of taking in this context (a plurality opinion with two concurrences), the Court was unanimous that this particular circumstance was not one. It concluded (as had Florida's Supreme Court) that Florida's common law treated the creation of a beach by replenishment as an "avulsion" and under the common law, the Court concluded, homeowners did not acquire ownership rights to such lands, although they did acquire (as Florida conceded) certain other rights (such as access across and an unobstructed view).
In Liu the facts were less sympathetic. The Lius' upland property had been condemned and its value had been set by a trial. The Lius also sought, however, to be compensated for the value created when New Jersey's beach replenishment program deposited sand on the Lius' beach and created more land. Here too New Jersey's highest court found that beach replenishment constituted an "avulsion" and that because the Lius never owned the land below mean high water, they could not own the land created when sand was deposited beyond mean high water, even if that land rose above the surface and severed the Luis's contact with the ocean.
Although neither decision addressed the rising sea level problem brought about by climate change, they are very likely to figure prominently in future controversies arising as communities attempt to deal with the submergence of the shore. Both appellate courts found that beach replenishment constituted an avulsion: “a sudden and perceptible loss or addition to land by the action of water or otherwise.” Liu, at 14, “sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream,” Stop the Beach Renourishment at 3. Since the common law did not permit property boundaries to be changed by an avulsion, all that was necessary for a decision in favor of the governmental defendants was a finding that beach replenishment constituted an avulsion, which is what the courts held. One can envision a number of ways how that conclusion may not be obvious. The courts creating the common law never considered that massive pumps at the bidding of the State would move the seabed. Nor was it contemplated that governmental entities would be able, at their discretion, to convert littoral properties to land-locked properties. But be that as it may, this is the law of the land.
And as such, communities at the shore can take much solace that they will be able to act to preserve their communities by establishing beaches around their boundaries before they are engulfed. And who is to say that such beaches may not morph into sand dunes, or even sand walls. And will the common law permit seawalls and revetments to be constructed on the new lands, converting the former beachfront properties, into beach-view properties, then dune-view properties and ultimately into seawall view properties.
The final chapter of this saga is not yet written. What remains to be seen is whether in the future the littoral property owners at the beach will be as ineffective against the power of the State, as the courtiers in the fable of King Canute were against the rising tide.