Lucas and Loretto are both instructive in the context of coastal regulation. Lucas is relevant because the facts of the case relate to governmental efforts to regulate coastal development. Clear from Lucas, a state may not regulate the use of property so severely as to rob it of all economic value. Under Loretto, a state is barred from subjecting landowners to physical takings without just compensation. In dicta, the Loretto court quoted from an 1872 case: "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution."13 As such, a government seeking to erect flood-control structures along the coast may then be required to pay just compensation to affected landowners.
Notably, the per se takings tests outlined in Lucas and Loretto are stringent ones. Only the strictest regulations or actual physical occupations will give rise to per se takings. Regulations that fall short of these standards are often construed as administrative action and thus upheld so long as they are not judged arbitrary, capricious, or unreasonable.14 In waterfront residential communities, this test will often apply to the myriad zoning restrictions that limit landowners' rights to develop.
While the controversy in Lucas centered on restrictions that limited the landowner's right to develop vacant lots, litigation in New York has concerned the limitations placed on existing homeowners and their attempts to protect their property by erecting flood-control structures. At issue in Allen v. Strough15 and its companion case, Poster v. Strough16 was the decision of the Town of Southampton to reject the applications of beachfront residents to install concrete revetments within a certain distance from the beach.
The Appellate Division, Second Department, reasoned that the town's decision to deny the application for installation of the revetment was not arbitrary and capricious, as there was "legitimate debate over the extent to which hard structures erected to protect one particular beachfront property might exacerbate erosion-related perils posed to other properties."17 While municipalities' restricting landowners in their attempts to protect their shores may seem counterintuitive, according to many commentators, the protection afforded by hard structures, such as jetties and revetments, sacrifices beaches downdrift of such structures.18 The protection of the individual's property, therefore, may operate to rob the public of recreational beaches.
'Stop the Beach Renourishment.' In addition to the LorettoLucas line of per se takings cases, there exists another genre of takings litigation wherein a landowner challenges the state's use of state-owned property. Where a state's use of its own property destroys private property, the Supreme Court has held that a taking has occurred.19
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,20 littoral owners, living adjacent to the ocean, argued that the state's use of submerged land effected a taking of individual landowners' littoral rights. Under the authority of Florida's Beach and Shore Preservation Act, the state's Department of Environmental Protection undertook beach restoration programs in various locations along the coast.21 The goal of the programs was to rebuild beaches by filling submerged land with additional sand. This practice made for a wider beach but gave rise to questions of title: Who owns the newly created property?
Florida maintains the common-law scheme of littoral rights outlined in Part 2 above, so the question the court faced was twofold: (i) whether the filling operated as an avulsion, thus vesting title to the newly formed beach in the state, and (ii) if so, whether the state's ownership of the newly created beach unconstitutionally interfered with landowners' littoral rights, particularly the right to accretion.22
The court held that the filling of submerged land constituted an avulsion. Accordingly, the state retained title to the newly created beach, and the landowners' contact with the water was thus severed.23 As a result of this severance, the littoral owners lost their common law right to accretion. The landowners argued that this loss of rights resulted in a taking. Still, the court held otherwise. On this point, the court relied on Martin v. Busch, a 1927 case in which the Supreme Court of Florida held that the state retained title to a lakebed after the state had caused the lake in question to be drained.24 The landowners argued that because their contact with the water had been lost, their right to accretion had been taken. Relying still on Martin, the court reasoned that the littoral owner's right to accretion must be subordinate to state's right to fill.25
While Stop the Beach has not been without criticism,26 the question is at base one of state law; and notably, other states have wrestled with the question and arrived at the same answer as Stop the Beach. For instance, the Supreme Court of New Jersey confronted the issue in City of Long Branch v. Jui Yung Liu. The littoral owners in Liu claimed title to approximately two acres of additional beachfront land that had been deposited upon their shores as a result of the efforts of a beach redevelopment program. The court concluded that the expansion of the Lius' shoreline by so great an amount over a two-week period constituted an avulsion and that, consistent with common-law doctrine, the state retained title to the subject land.27
After 'Stop the Beach.' In the aftermath of Hurricane Sandy, Stop the Beach is instructive. States and municipalities may undertake beach redevelopment efforts in an attempt to restore the waterfront to pre-Sandy conditions. To the extent that courts are willing to characterize the shoreline destruction caused by Sandy as avulsion, title will have not changed hands; that is, title to land submerged by Sandy will remain vested in the individual littoral owners. For instance, upon filling of the channel cut by Sandy across Fire island the land would be owned by the littoral owner rather than the state because the littoral owner would never have lost its claim to the property.