STBR appealed to the First District Court of Appeal, which in an opinion by Judge (now Justice) Polston, reversed the administrative law judge's decision, and held that the act's provisions for the E CL deprived plaintiffs of their property rights to future accretions and contact with the water without providing for just compensation.
The court specially discussed Belvedere, which STBR and the First District had relied upon to conclude the act affected a taking of the upland owner's property right to access.
STBR focused its merits brief on four key arguments: 1) The shore at the subject location was not critically eroded, and the renourishment project was simply undertaken to create a purely public beach; 2) prior to the Florida Supreme Court's decision, Florida's background principles of littoral property law established rights to direct and exclusive, immediate, and direct access to the ocean and the right to accretions; 3) the Florida Supreme Court's decision was a judicial taking of STBR's property rights to accretion and direct contact with the water; and, critically 4) the court should recognize, for the first time in constitutional jurisprudence, a judicial taking of private property without just compensation in violation of the Constitution of the United States.
On the issue of judicial takings, STBR tracked language used by Justice Stewart in his concurring opinion in Hughes v.
They argued that because the case below was decided only as a matter of Florida constitutional law, and STBR had presented a federal constitutional claim only when it petitioned the U.S.
Justice Scalia wrote the judgment of the court, though he wrote for the court on only the issue of whether the act's provisions took STBR's members' property.
Based on the opinions of the justices, it is fair to surmise that when they received STBR's petition for writ of certiorari, four justices saw this case as an opportunity to say there are judicial takings and took it as an avenue for establishing such a taking.
(63) Despite having lost the case, STBR and its amici have taken solace in Justice Scalia's opinion that he (and his three colleagues) would recognize judicial takings, as well as Justice Kennedy's and Justice Sotomayor's belief that judicial decisions that eliminate property rights may be remedied as violations of due process.