Condemnation and Tax Certiorari

The U.S. Supreme Court has recently granted certiorari to the Florida Supreme Court in a claimed takings case which has an unusual twist to it; unusual because the basis for the claimed inverse condemnation is a decision of Florida’s highest court interpreting the state’s law of real property. We expect that it will attract a number of amicus briefs to it, including one from the Owners’ Counsel of America, a national organization of attorneys practicing in the area of condemnation law, which alerted us to this case.

As described in the briefs and decision in Stop the Beach Renourishment Inc. v. Florida DEP, etc., 998 So2d 1102 (Fla., 2008), the Florida Legislature adopted the Beach and Shore Preservation Act in response to the devastation to Florida’s Gulf of Mexico beaches caused by massive hurricanes in that area. The act provided that where there was a storm-damaged beach that the state wished to restore, it, through one of its agencies, would establish an “Erosion Control Line” (ECL) by survey. The line, coinciding with the mean high water line (MHWL) at that time, would then be recorded.