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June 2011 Archives

You may own your castle built on sand but who owns the sand? Updated

In a new type of property dispute, the U.S. Supreme Court last year held that the State of Florida id not have to compensate beach front homeowners when it creates new beach by adding sand and declares the new beach to be public land.   The case, Stop The Beach Renourishment Inc. v. Florida Department of Environmental Protection, was a ruling for the state with no dissent on the Court.Basically, the Florida Department of Environmental Protection has a program of adding sand to widen beaches along much of Florida's extensive coastline to protect against beach erosion and other damage caused by storms - of course Florida is very prone to being hit by hurricanes.  The dispute arises over the ownership of this newly created beach.  The longtime law in Florida was that a private owner's land ended at the line where the ocean reaches at high tide (a boundary which would naturally shift over time).  The State of Florida essentially fixed this boundary and then declared that newly created beach outside that line would be public land and also provided that no permanent structures could be built on this new beach.  In Destin, Florida where this case arose, the added beach is 60 feet wide.Homeowners challenged this program arguing that they before the new beach was created, they had beachfront property and now they no longer have beachfront property due to the added public beach.  The owners argued that this constituted a taking of property by the state and that the state must pay them compensation.The state essentially argued that the private owners still own all the beach they did before and that this project both protects the area's attractiveness to tourists and specifically protects the land and homes of the very homeowners who sued the state.  The state also argued that the homeowners still have free access to the ocean and have free use of the new public beach paid for with public money.Justice John Paul Stevens was not present at the oral argument and the Washington Examiner article noted that he owns an apartment in a beachfront building in Fort Lauderdale.  The court, in an opinion by Justice Scalia, ruled that that there was no showing that a taking had occurred.  The owners still owned the same amount of land as before and there was no showing that the owners had had a well established legal property littoral right i.e. a right of bordering the ocean as opposed to owning a certain area of land.This case could have impact in every coastal state and thus it is not surprising that 26 states along with the Obama Administration supported the position of the State of Florida.  With rising sea levels and government efforts to protect shorelines, this precedent will likely be important in the future.

New Pa Custody Statute - Who has standing to file custody action?

Earlier this year, a major overhaul of Pennsylvania's child custody laws took effect.  A major thrust of the new statute was to codify the case law on custody into an organized statutory framework.  In this and future posts, I will highlight some of the provisions in the new Pennsylvania custody statute. One of the first questions that come up is who has standing - the right to take a child custody case to court.  This is addressed in section 5324.  Most obviously, a parent of a child can file a custody action.  Next, a person who stands "in loco parentis" i.e. a relationship to a child in which that person has assumed a parental role and acts to carry out parental duties regarding that child. The last category of standing to seek an order for child custody relates to grandparents who are not in loco parentis.  Such grandparents can file a custody action if the grandparent is one:

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