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Castles—and Roads—in the Sand: Do All Roads Lead to a “Taking”?

October 2018

Citation: 48 ELR 10914

Issue: 10

Author: Thomas Ruppert

The law has been slow to acknowledge the unprecedented nature of sea-level rise. Unless and until the law adapts, past case law on coastal hazards exacerbated by sea-level rise provides the best guidance. This Article critically examines 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. The Article traces how other courts have unwittingly or carelessly introduced “inaction” into their takings jurisprudence, and evaluates whether and when inaction should be sufficient basis for a takings claim. It draws out serious policy implications of the case in light of sea-level rise, and makes recommendations to address fallout from the case.

Thomas Ruppert, Esq., is a Coastal Planning Specialist with the Florida Sea Grant College Program.

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