A reminder about eminent domain and government power
Last week after the Thanksgiving holidays, the Supreme Court started to hear oral arguments in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, a case of eminent domain. This is the biggest case since the court extended the use of eminent domain in the landmark Kelo v. City of New London case in which the Supreme Court sanctioned the seizure of privately-held property to increase jobs, taxes and to decrease urban blight.
Given the jobs picture and the very dire circumstances facing municipalities, it is not unreasonable to assume that a verdict in favour of eminent domain would lead to more land seizures as municipalities looked for ways to fill their coffers.
The Wall Street Journal reported on the ‘Stop the Beach’ case early last week saying:
The case, Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself.
The Florida Supreme Court ruled 5-2 for the state and claimed the program doesn’t mean the state can go around "creating as much dry land between upland property and the water as it pleases." There’s a point, they said, at which such beach additions would represent an unconstitutional taking. But the problem is where exactly that point occurs: Without a specific demarcation, it’s a slippery slope for how much land the state may seize without having to compensate the private owners.
To reach its decision, the Florida high court had to throw over 100 years of common law to declare that waterfront property owners have "no independent right of contact with the water." In a scathing dissent, Florida Justice Fred Lewis wrote that for the court to say that waterfront rights are unconnected with ownership of the land abutting water is a non sequitur. The court had "butchered Florida law," he wrote, and "unnecessarily created dangerous precedent based on a manipulation of the question actually certified."
I reported on another case of eminent domain last month in which the New York Supreme Court okayed the demolition of private property to make way for a basketball stadium. I see all of these cases as troubling reminders of the coercive power of the state and its ability to trample on individual property rights. Now that the legal system is being used to allow this, there is no reason for strapped municipalities to choose urban renewal as a means to greater tax revenue and jobs.
In the Kelo v. New London case, Pfizer claimed it would create 3,000 jobs by building a $300 million research facility. The entire neighbourhood was eventually bulldozed. However, just this past November, Pfizer announced it was shutting down its research centre: job cuts and a poor economy the reason.
Source
Property Rights at the Water’s Edge – WSJ
See also Spring Break, Scalia-Style from Slate.com
Although rightly controversial at the time, Kelo is mostly moot, as 42 states have passed laws limiting the ability to take for economic development. Thus Kelo affirmed a right that most states have subsequently disavowed.
The interesting thing about the Florida beach case is that is almost an inverse takings action – new land was created with public money and landowners assert that this new land is private. Historically and by statute, private beaches extend to the high tide line. A lot of beach was washed away, Florida said “OK, the new high water mark is your new property line”, then Florida spent public money to rebuild the beach, and said ahead of time that this NEW beach is not private, but public. Beach owners say “But that used to be my land, so it still should be.” State says “We built it, we own it.” Litigation ensues.
From my perspective, this case is much less controversial that Kelo, although just as legally interesting.
For the time being, Kelo has been shut down, in large part due to the vociferous anti-Kelo response the decision engendered. I think you are right that this case is much less clear cut but also very interesting. The Atlantic Yards case is the one most similar to Kelo and it does show that eminent domain is an issue that will be in the news until we can get some measure of closure on what is and is not permissible.