This Article examines the Supreme Court’s determination in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), that the Florida Supreme Court’s upholding of Florida’s Beach and Shore Preservation Act did not constitute a “taking” of a landowner’s property, which would require just compensation under the Fifth Amendment of the United States Constitution. The Article assumes, as set forth by Justice Scalia’s plurality, that a judicial takings doctrine exists. Employing the hypothetical proposed by Chief Justice Roberts, this Article examines the various legal avenues, procedural and otherwise, available to a landowner aggrieved by a judicial “taking.”
The Article initially addresses an aggrieved landowner’s options for recourse in state court: moving to rehear the Florida Supreme Court decision or filing an entirely new action in a local circuit court. Given the unlikelihood that lower state courts would overturn a Florida Supreme Court decision and the ease with which the Florida Supreme Court could deny a motion to rehear, the Author notes that the state-court avenue is filled with procedural hurdles likely to leave the landowner without relief.
The Article then discusses how the same hypothetical would unfold in the federal courts when a landowner asserts that the Florida Supreme Court decision worked as a taking. The Article details the federalism issue at play, concluding that the current doctrine would actually bar the aggrieved landowner from seeking relief in federal court but would allow similarly situated landowners to file their own claims. The Article also notes the abstention and immunity obstacles that the similarly situated landowners would face in their claims. Even though a landowner’s chances of obtaining relief are slightly better in the federal court system, the Article concludes with a plea to the United States Supreme Court for guidance regarding this complicated judicial takings doctrine.