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It would appear that judged by the result, the Supreme Court's June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection looks like a model of judicial restraint. The court unanimously rejected a claim by landowners on Florida’s northern Gulf Coast that they had suffered an unconstitutional taking of property after beach restoration by local governments turned their oceanfront homes into ocean-view lots separated from the water by 75 feet of new sand. However, when on reads some commentary from the different judges, one has to wonder where this goes. This is an except from the California Planning & Development Report: Reporting from Washington, D.C., contributing editor Kenneth Jost discusses the Supreme Court's latest property rights case. Although the decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection has roused little controversy, some commentary in the justices’ decision amounts to some serious judicial activism, says Jost. In his decision, Justice Scalia suggests that a mere court decision that reduces the value of a piece of property could be construed as a taking – with nary a wrecking ball in sight.
This is from scotuswiki.com: Four members of the Court – Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito – agreed that there is such a thing as a judicial taking. In the view of those Justices, if something was once an established property right but a court indicates that the right no longer exists, the court has unconstitutionally “taken” the property. The plurality reasoned that the Takings Clause is concerned with the act of taking property, rather than with the branch of government which effects the taking.
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