Castles-and Roads-in the Sand: Do All Roads Lead to a 'Taking'?

Date01 October 2018
Roads—in the
Sand: Do All
Roads Lead to a
by omas Ruppert
omas Ruppert, Esq., is a Coastal Planning Specialist
with the Florida Sea Grant College Program.
e law has been slow to acknowledge the unprec-
edented nature of sea-level rise. Unless and until the
law adapts, past case law on coastal hazards exacer-
bated by sea-level rise provides the best guidance. is
Article critically exam ines a Florida case that addressed
local government liability for coastal erosion damage
to a road and dramatically altered Florida law in two
key respects. First, the case altered and expanded the
concept of “maintenance” of road infrastructure by a
local government as the baseline duty that must be
met to avoid potential legal liability. Second, the case
introduced into Florida law the controversial idea that
“inaction” may support a Fifth Amendment takings
claim. e Article traces how other courts have unwit-
tingly or carelessly introduced “inaction” into their
takings jurisprudence, and evaluates whether and
when inaction should be sucient basis for a takings
claim. It draws out serious policy implications of the
case in light of sea-level rise, and makes recommenda-
tions to address fallout from the case.
Sea-level rise (SLR) and its impact on coastal infra-
structure now represent everyday realities in many
communitie s. Whi le numerous loc al govern-
ments in Florida and elsewhere have begun incorporat-
ing SLR into planning decisions through ordinances and
resolutions,1 and even implementing adaptations through
new standards,2 few legal cases have arisen that directly
address SLR. Nonetheless, since SLR often manifests itself
through familiar coastal hazards such as erosion and tida l
and storm-surge ooding, cases that address the impacts
of these coastal ha zards can be a useful guide to show how
courts might address SLR.3
Author’s Note: Special thanks to Andrew Stoquert, J.D., for research
assistance, and to Erin Deady and Danielle Schwabe of Erin L. Deady,
P.A., as well as St. Johns County Attorney Patrick McCormack for
his time and insights. anks also for comment and review on earlier
drafts by Erin Deady, Julia Wyman, Cynthia Hall, Chris Ambrosio,
Christine Limbert, and John Fergus. Review by these individuals
does not imply agreement or support for any material or opinions in
this Article. All statements, assertions, opinions, and errors remain
those of the author. is work was supported in part by funding from
the National Oceanic and Atmospheric Administration under grant
NOA14OAR4170108. As with the reviewers, the views expressed
below are those of the author and do not necessarily reect those of the
National Oceanic and Atmospheric Administration.
1. See, e.g., T R  A S, H E,
D: S  C  S-L R A
L  F L G C P 
O (2015), https://www.
Ruppert-Updated-Sea-Level-Language_7.2.15.pdf. See also Miami-Dade
County, Fla., Resolution No. R-451-14 (May 6, 2014) (requiring that all
county infrastructure projects initiated after the date of the resolution con-
sider SLR projections and potential impacts during the greater of 50 years
or the design life of the project),
2. As examples, in Florida, see Erin L. Deady, Why the Law of Climate Change
Matters: From Paris to a Local Government Near You, 91 F. B.J. 54 n.50
(2017) (discussing a Monroe County (i.e., the Florida Keys) ordinance
implementing a provisional design standard for elevating roads based on
a pilot project), and omas Ruppert & Emma Hollowell, Seawalls & Sea-
Level-Rise-Induced Flooding: Addressing Public and Private Infrastructure, 34
E.  L U L. S. R. F. B. 4 (2017) (discussing an innovative
method of addressing ooding occasioned by subpar seawalls in Fort Lau-
derdale); Miami Beach, Fla., Ordinance No. 2016-4009 (May 11, 2016)
(addressing SLR and ooding by, among other things, adding a minimum
of one foot of freeboard and allowing up to ve feet of freeboard above base
ood elevation without such elevation counting in calculation of maximum
building heights and dening the “future crown of road” as an elevation
benchmark in permitting), and Ordinance No. 2016-4010 (May 11, 2016)
(addressing SLR and ooding by, among other things, dening a “future
adjusted grade,” setting increased minimum yard elevations and establish-
ing maximum yard elevations, and requiring that commercial building rst
oor heights along rights-of-way that have not yet been raised be sucient
to allow elevation of the rst oor to the base ood elevation plus minimum
freeboard once the adjoining right-of-way is elevated as planned).
3. For an argument that courts should consider SLR as a unique phenomenon
to which the usual legal rules about ambulatory boundaries in the coastal
zone should not apply, see Alyson C. Flournoy, Beach Law Cleanup: How
Sea-Level Rise Has Eroded the Ambulatory Boundaries Legal Framework, 42
V. L. R. 89 (2017).
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
10-2018 NEWS & ANALYSIS 48 ELR 10915
is Article analyzes the Florida case of Jordan v. St.
Johns Count y.4 Jordan forced Florida’s Fifth District Court
of Appeal to address a challenging environmental issue:
coastal erosion that makes ordinary maintenance of infra-
structure prohibitively expensive. While the appellate case
was decided several years ago—and eventua lly settled
before a decision on remand—the case merits caref ul anal-
ysis and dissection due to two specic issues the appellate
case addresses t hat dramatically impact local governments.
First, the case introduced into Florida a duty on the part of
local governments to “provide a reasonable level of [road]
maintenance that aords meaningful access” regardless
of environmental conditions—such as erosion—that may
make typica l maintenance of a road technically and nan-
cially infeasible. Second, the ca se then leveraged this new-
found duty as the basis for introducing into Florida law the
idea that government inaction—as opposed to government
action—could support a tak ings claim when there is a duty
to act.
While t he Jordan c ase occurred in the state court sys-
tem of Florida, the potential ramications reverberate far
beyond Florida. e case has alre ady been cited by a Mary-
land court for its newly minted Florida law that govern-
ment inaction can support a taking.5 e case ha s also been
cited by law professors arguing for dramatic a lteration of
the notion of property rights under the U.S. Constitution’s
Fifth A mendment.6 us, the seemingly insular nature
of this case belies its potential impact across the country,
particularly in light of changing environmental conditions
due to SLR.
e Article focuses on two specic issues in the appel-
late court decision: a judicially created duty regarding
roads, and a judicial holding, unprecedented in Florida,
that government inaction can support a takings claim of
private property under the Fifth Amendment.7 Part I pro-
vides background on the trial court and appellate court
decisions. Part II discusses issues surrounding the duty of
maintenance as used in Jordan. First, I give a critica l evalu-
ation of the appellate court’s use of precedent in outlining
the duty of maintenance. Second, I argue t hat the appel-
late court fundamentally erred by failing to dierentiate
between two di erent uses of the word “maintenance.” e
rst use is as a legal term of art related to the widespread
legal distinction in sovereign immunity determinations for
government bet ween planning-level/legislative versus min-
4. 63 So. 3d 835 (Fla. Dist. Ct. App. 2011).
5. Litz v. Maryland Dep’t of the Env’t, 131 A.3d 923 (Md. Ct. Spec. App.
6. See, e.g., Christopher Serkin, Passive Takings: e State’s Armative Duty to
Protect Property, 113 M. L. R. 345 (2014); Michael Pappas, A Right to
Be Regulated?, 24 G. M L. R. 99 (2016). But see David Dana, In-
centivizing Municipalities to Adapt to Climate Change: Takings Liability and
FEMA Reform as Possible Solutions, 43 B.C. E. A. L. R. 281 (2016).
7. Jordan, 63 So. 3d at 839.
isterial decisions. e second use of “maintenance” reveals
one of its common meanings: to “maintain” something in
existence. Using the word in both of these ways simultane-
ously contributed to the problematic analysis in the Jor-
dan appellate case. Based on this conf usion in the use of
the word “maintenance,” Part II concludes that the Jordan
appellate court may have violated the separation-of-powers
doctrine by invading the territory of the local government
legislat ive branch.
Part III evaluates “ inaction” as used in the Jord an appel-
late decision. It acknowledges a split among courts nation-
ally as to whether “inaction” by government can provide
a basis for a Fifth Amendment tak ings claim. To demon-
strate the importance of caref ul review of the facts and law
of original cases when citing t hem as precedent, this part
reviews an exa mple where courts, without careful ana lysis
of precedent, allowed the word “inaction” to move from
dictum in previous cases to the asserted holding of a case
in Minnesota law. Finally, I assert that in the Jordan case,
there was no “inaction” on the part of the defendant count y
that contributed to the taking asserted by the plaintis.
Part IV outlines potential policy implications of the
Jordan appellate court decision, including the decision’s
potential to cause nancia l chaos for local governments and
promote redistribution of wealth from general taxpayers to
coastal property owners. Part V moves on to note possible
lessons from the case and presents recommendations, ran g-
ing from those most specic to the scenario in Jordan
such as cautioning local governments when accepting
anything for “free”—to those at the broadest scale—such
as our societal need in the face of SLR to regain a vibrant
dialogue on what we mean by “property.”
Part VI provides a conclusion; and due to new federal
case law in St. Bernard Parish Gov’t v. United States that
developed after initial drafting of this A rticle, a newly
added Part VII addresses that case and its implications.
I. The Background of Jordan
e procedural history of Jordan is a lengthy one, moving
from trial court, to appellate cou rt, to a rejection of rehear-
ing by the Fifth District Cour t of Appeal, to a rejected
appeal by the Florida Supreme Court, and ultimately to a
settlement agreement. is part provides background on
the trial court a nd appellate court decisions.
A. Facts and Trial Court Opinion
In Jordan v. St. Johns County,8 landowners brou ght suit
against St. Johns County concerning a county-owned
8. Jordan v. St. Johns County, No. 05-694, slip op. at 2 (Fla. Cir. Ct. May 21,
2009), a’d in part, rev’d in part, Jordan v. St. Johns County, 63 So. 3d 835,
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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