Establishing Property Lines

Beach Replenishment and Eminent Domain
by William E. McGrath, PLS

On June 17, 2010 the United States Supreme Court handed down a precedent ruling as it relates to the establishment of property lines along littoral properties. The case is known as Stop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection. This case is of particular interest to land surveyors who are charged with the responsibility of establishing property lines along littoral boundaries.

Case Background

This Supreme Court case involved beachfront property along the Gulf of Mexico in the town of Destin, Florida. After recent hurricanes along the gulf coast, the Florida Department of Environmental Protection undertook several beach replenishment projects to add sand to severely eroded beachfront areas. They dredged sand offshore and deposited it along the beachfront, adding about 75 feet of beach beyond the mean high water line.

Because the State of Florida, in trust for the public, owns everything offshore of the ordinary mean high water line, they concluded that they owned the 75 feet of additional beach. This action made the upland private property no longer waterfront property. In addition, it added a 75-foot-wide strip of public beach area between the former mean high water line and the new mean high water line.

The property owners filed suit to claim their littoral rights have been taken and sought compensation under eminent domain. They specifically cited two rights: (1) to receive future accretions to their property, and (2) to have their property’s contact with the water remain intact.

The mean high water line is the ordinary boundary between private beachfront, or littoral property, and state-owned land. It is a local elevation datum that is determined by averaging all the high tides over a tidal epoch (18.6 years). Where this datum intersects the beach is the mean high water line.

Littoral owners have, inter alia, rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive accretions (the silting in of former tidelands that occurs naturally over time) and relictions (the natural, gradual lowering of sea level) to the littoral property. Therefore the littoral owner automatically takes title to dry land added to his property by accretion or reliction.

An accretion occurs gradually and imperceptibly, while a sudden change is an avulsion. Accretions most often occur after an avulsion event from a storm or hurricane; the sand that erodes off a beach to an underwater shoal offshore is gradually, via natural littoral flow, re-deposited back on the beach.

There are two types of avulsion: natural avulsion (e.g. erosion by a nor’easter or hurricane) and artificial avulsion (e.g. beachfront replenishment projects). Note that after avulsion, the seaward boundary of littoral property remains what it was: the mean high-water line before the event. Thus, when an avulsion has added new land, the littoral owner has no right to subsequent accretions because the property abutting it belongs to the owner of the seabed (ordinarily the State).

(The above terms and data have not been taken from a land surveying textbook; they were taken from the U.S. Supreme Court’s oral argument transcripts and written documents of the above referenced case.)

Case Results

Initially the plaintiffs, being the private property owners (Stop The Beach Renourishment, Inc.) brought an unsuccessful administrative challenge. The Florida Department of Environmental Protection approved the permits, and the suit followed. The State Court of Appeals concluded that the department’s order had eliminated the property owners’ littoral rights 1) to receive accretions to their property and 2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking and would require an additional administrative requirement to be met, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question whether the act unconstitutionally deprived the property owners of littoral rights without just compensation.

The State Supreme Court answered “no” and quashed the remand, concluding that the property owners did not own the property supposedly taken. The property owners sought a rehearing on the grounds that the Florida Supreme Court’s decision effected a “taking” of the property owner’s littoral rights contrary to the Fifth and Fourteenth Amendments. The rehearing was denied by the Florida Supreme Court. The property owners then appealed to the federal courts, ultimately the United States Supreme Court.

The U.S. Supreme Court unanimously upheld the Florida Supreme Court’s ruling 8 to 0. (Justice Stevens recused himself, presumably because he owns a beachfront condo in Florida.) Although the ruling was unanimous, the justices were divided on the notion that a court itself, being a branch of government, can effect a “taking” of rights by its mere ruling on rights. Hence, it is subject to the provisions of eminent domain compensation.

Chief Justice Roberts and Justices Scalia, Thomas, and Alito strongly endorsed the notion that the Constitution prohibits judicial takings. As Justice Scalia observed, the text could not be clearer: “The Takings Clause ... is not addressed to the action of a specific branch or branches.” The Fifth Amendment states that the government must provide “just compensation” whenever it takes private property for “public use.” There is no exception in the constitutional text authorizing a court, as opposed to a legislature, to take private property without compensation.

Justices Kennedy and Sotomayor did not dispute the absence of any such limitation in the text of the Constitution. However, they were hesitant to decide the question, finding that it was not necessary for resolution of the case and that there were potential complications inherent in recognizing judicial takings. Likewise, Justices Breyer and Ginsberg found that such questions were “better left for another day,” worrying that recognizing a judicial takings doctrine would “open the federal court doors to constitutional review of many (perhaps large numbers of) state-law cases in an area of law familiar to state, but not federal, judges.”

Implications for Surveyors

The above case relates to most states with beach replenishment projects, both completed and contemplated. It would behoove the public to know where the natural mean high water line is just prior to any beach replenishment project. In that way, the public will know the bounds of its future public beach. Adjacent private property owners would also want to know at what point the public would be trespassing on their property.

It would be an easy matter to establish the existing mean high water line and, to a lesser extent, a historic mean high water line by aerial photography. Unfortunately, aerial photography would not produce the required degree of accuracy. A quick audit of the last dozen or so sweep grants claims—recorded in my county clerk’s office to clear state tidelands—ranged in fair market value price from $42 to $107 per square foot. I don’t pretend to be an appraiser, but I think it would be safe to say that property along the Atlantic Ocean would be valued at least $100 per square foot. At $100 per square foot, a degree of accuracy would have to be far more than what aerial photography could provide.

The 18.6-year tidal epoch mean high water line elevation datum simply can’t be accurately depicted along a beach with a very slight slope. The correct method would be field measurements at various intervals along the beach to determine the coordinate points of where the local mean high water line elevation datum intersects the slope of the beach. Unlike the establishment of the New Jersey Tidelands Claims Line back in 1984, this work should be documented and certified by a licensed professional land surveyor using the correct method. Somehow back in the mid 1980s the State of New Jersey bypassed our entire profession to prepare those “survey” maps of land previously flowed by tidal water.

Several years ago I had the occasion to appeal a tidelands claim whose source was an 1886 USC&GS topographic map. The width of the mean high water line at the map scale, when rectified to the actual ground, resulted in a line 25 feet wide. Furthermore, the tidelands claims delineation protocols, established by the NJDEP Office of Environmental Analysis in 1977 and subsequently approved by the courts, state: “Locate all delineation lines so that the landward edge of each line is placed along the landward edge of the area delineated as now or formerly below mean low water.”  When you do the math using that somewhat unjust protocol: at $100 per square foot along 100 feet of frontage times 25 feet of uncertainty equals plus or minus $250,000.

Accuracy matters, and sometimes it absolutely matters. Lucky for us, the State issued a letter of non-interest (quit claim) because of a very old riparian grant that we weren’t sure would apply. If they hadn’t, we would have appealed to the courts based on that unjust protocol, and I would be busy searching for the plane table field notes used to prepare the 1886 map that actually exists somewhere deep in the bowels of the federal archives in Washington, D.C.

In view of the recent U.S. Supreme Court ruling, I am in favor of passing legislation to have a licensed professional land surveyor measure, document, and certify, using the proper methodology, the ordinary local mean high water line prior to any beach replenishment project.
William E. McGrath PLS has been associated with the firm of George W. Henn, Inc. for the past 45 years. Bill is a riparian consultant who specializes in tidelands issues relating to grants, licenses, tidelands claims, and landuse. He was named Surveyor of the Year by the New Jersey Society of Professional Land Surveyors in 2010.

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