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Land Use, Oregon, and the U.S. Supreme Court

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This National Law Journal article about the case, Stop the Beach Renourishment v. Florida (S. Ct. Docket number: 08-1151) caught my eye:

“Setting boundaries for property rights: The Supreme Court will decide whether Florida ran roughshod over beachfront landholders,” by Timothy Sandefur, August 31, 2009

Excerpts: ‘The U.S. Supreme Court surprised many when it decided it would review an unusual Florida property rights dispute this fall. That case, Stop the Beach Renourishment v. Florida, involves some of the most profound questions about the judiciary’s role in protecting private property rights.

But the U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless. More than four decades ago, Justice Potter Stewart warned that, without a constitutional limit on the states’ power to determine the nature of property, states could “defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.”

In 1993, Stewart’s fears came true when the Oregon Supreme Court unexpectedly announced that waterfront property owners could not exclude the public from private beaches. Although federal courts refused to intervene, Justices Antonin Scalia and Sandra Day O’Connor objected. “As a general matter, the Constitution leaves the law of real property to the States,” they wrote. “But just as a State may not deny rights protected under the Federal Constitution through pretextual procedural rulings, neither may it do so by invoking nonexistent rules of state substantive law.”…‘ (link to full article)

The Oregon case referred to is Stevens v. City of Cannon Beach, at 317 Ore. 131, 854 P. 2d 449 (1993), which went on to the U.S. Supreme Court, where you will find the denial of certiorari opinion at 510 U.S. 1207 (1994). (You can find the U.S. Supreme Court case posted online at various sites using this search string: stevens cannon beach oregon supreme court. The Oregon Supreme Court case is not at any free, public online database. Contact a law library for a copy.)

More blog posts on the Florida case, at Property Profs blog and the Florida Legal Blog, among others.