505 U.S. 1003
Argued March 2, 1992.
Decided June 29, 1992.
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1986, petitioner Lucas bought two residential lots on a South
Carolina barrier island, intending to build single-family
homes such as those on the immediately adjacent parcels.
At that time, Lucas's lots were not subject to the
State's coastal zone building permit requirements.
In 1988, however, the state legislature enacted the
Beachfront Management Act, which barred Lucas from erecting
any permanent habitable structures on his parcels.
He filed suit against respondent state agency, contending
that, even though the Act may have been a lawful exercise
of the State's police power, the ban on construction deprived
him of all "economically viable use" of his property
and therefore effected a "taking" under the Fifth
and Fourteenth Amendments that required the payment of just
See, e.g., Agins v. City of Tiburon, 447 U.S. 255,
261, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106.
The state trial court agreed, finding that the ban
rendered Lucas's parcels "valueless," and entered
an award exceeding $1.2 million.
In reversing, the State Supreme Court held itself bound,
in light of Lucas's failure to attack the Act's validity,
to accept the legislature's "uncontested ... findings"
that new construction in the coastal zone threatened a valuable
The court ruled that, under the Mugler v. Kansas, 123
U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, line of cases, when a
regulation is designed to prevent "harmful or noxious
uses" of property akin to public nuisances, no compensation
is owing under the Takings Clause regardless of the regulation's
effect on the property's value.
Lucas's takings claim is not rendered unripe by the fact that he may yet
be able to secure a special permit to build on his property under an
amendment to the Act passed after briefing and argument before the State Supreme Court, but prior to issuance of that court's
opinion. Because it
declined to rest its judgment on ripeness grounds, preferring to dispose
of the case on the merits, the latter court's decision precludes, both
practically and legally, any takings claim with respect to Lucas's
preamendment deprivation. Lucas
has properly alleged injury in fact with respect to this preamendment
deprivation, and it would not accord with sound process in these
circumstances to insist that he pursue the late-created procedure before
that component of his takings claim can be considered ripe.
2. The State Supreme Court erred in applying the "harmful or noxious
uses" principle to decide this case.
Regulations that deny the property owner all "economically viable use
of his land" constitute one of the discrete categories of regulatory
deprivations that require compensation without the usual case-specific
inquiry into the public interest advanced in support of the restraint.
Although the Court has never set forth the justification for this
categorical rule, the practical -- and economic -- equivalence of
physically appropriating and eliminating all beneficial use of land
counsels its preservation. Pp.
A review of the relevant decisions demonstrates that the "harmful or
noxious use" principle was merely this Court's early formulation of
the police power justification necessary to sustain (without compensation)
any regulatory diminution in value; that
the distinction between regulation that "prevents harmful use"
and that which "confers benefits" is difficult, if not
impossible, to discern on an objective, value-free basis;
and that, therefore, noxious-use logic cannot be the basis for
departing from this Court's categorical rule that total regulatory takings
must be compensated. Pp.
Rather, the question must turn, in accord with this Court's
"takings" jurisprudence, on citizens' historic understandings
regarding the content of, and the State's power over, the "bundle of
rights" that they acquire when they take title to property.
Because it is not consistent with the historical compact embodied
in the Takings Clause that title to real estate is held subject to the
State's subsequent decision to eliminate all economically beneficial use,
a regulation having that effect cannot be newly decreed, and sustained,
without compensation's being paid the owner.
However, no compensation is owed -- in this setting as with all
takings claims -- if the State's affirmative decree simply makes explicit
what already inheres in the title itself, in the restrictions that
background principles of the State's law of property and nuisance already
place upon land ownership. Cf.
Scranton v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 57, 45 L.Ed. 126. Pp. 2899-2901.
Although it seems unlikely that common-law principles would have prevented
the erection of any habitable or productive improvements on Lucas's land,
this state-law question must be dealt with on remand. To win its case, respondent cannot simply proffer the
legislature's declaration that the uses Lucas desires are inconsistent
with the public interest, or the conclusory assertion that they violate a
common-law maxim such as sic utere tuo ut alienum non laedas, but must
identify background principles of nuisance and property law that prohibit
the uses Lucas now intends in the property's present circumstances. Pp.
S.C. 376, 404 S.E.2d 895 (1991), reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and THOMAS, JJ.,
joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p.
2902. BLACKMUN, J., post, p. 2904, and STEVENS, J., post, p. 2917, filed
dissenting opinions. SOUTER,
J., filed a separate statement, post, p. 2925.
Camden Lewis argued the cause for petitioner.
With him on the briefs were Gerald M. Finkel and David J. Bederman.
Harness III argued the cause for respondent.
With him on the brief were T. Travis Medlock, Attorney General of
South Carolina, Kenneth P. Woodington, Senior Assistant Attorney General,
and Richard J. Lazarus. [FN*]
Briefs of amici curiae urging reversal were filed for the United States by
Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy
Solicitor General Wallace, Deputy Assistant Attorney General Clegg, Acting
Deputy Attorney General Cohen, Edwin S. Kneedler, Peter R. Steenland,
James E. Brookshire, John A. Bryson, and Martin W. Matzen; for United
States Senator Steven Symms et al. by Peter D. Dickson, Howard E. Shapiro,
and D. Eric Hultman; for the American Farm Bureau Federation et al. by
James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John J.
Rademacher, and Richard L. Krause; for the American Mining Congress et al.
by George W. Miller, Walter A. Smith, Jr., Stuart A. Sanderson, William E.
Hynan, and Robert A. Kirshner; for the Chamber of Commerce of the United
States of America by Stephen A. Bokat, Robin S. Conrad, Herbert L. Fenster,
and Tami Lyn Azorsky; for Defenders of Property Rights et al. by Nancy G.
Marzulla; for the Fire Island Association, Inc., by Bernard S. Meyer; for
the Institute for Justice by Richard A. Epstein, William H. Mellor III,
Clint Bolick, and Jonathan W. Emord; for the Long Beach Island Oceanfront
Homeowners Association et al. by Theodore J. Carlson; for the Mountain
States Legal Foundation et al. by William Perry Pendley; for the National
Association of Home Builders et al. by Michael M. Berger and William H.
Ethier; for the Nemours Foundation, Inc., by John J. Mullenholz; for the
Northern Virginia Chapter of the National Association of Industrial and
Office Parks et al. by John Holland Foote and John F. Cahill; for the
Pacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and
R.S. Radford; and for the South Carolina Policy Council Education
Foundation et al. by G. Stephen Parker.
U.S. Supreme Court Briefs See:
WL 626699 (Pet.Brief)
WL 672609 (Reply.Brief)
WL 672613 (Resp.Brief)
Transcript of Oral Argument See:
WL 687838 (U.S.Oral.Arg.)
WL 691954 (U.S.Oral.Arg.)
of amici curiae urging affirmance were filed for the State of California
by Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief
Assistant Attorney General, Jan S. Stevens, Assistant Attorney General,
Richard M. Frank and Craig C. Thompson, Supervising Deputy Attorneys
General, and Maria Dante Brown and Virna L. Santos, Deputy Attorneys
General; for the State of Florida et al. by Robert A. Butterworth,
Attorney General of Florida, and Lewis F. Hubener, Assistant Attorney
General, James H. Evans, Attorney General of Alabama, Richard Blumenthal,
Attorney General of Connecticut, Charles M. Oberly III, Attorney General
of Delaware, Michael J. Bowers, Attorney General of Georgia, Elizabeth
Barrett‑ Anderson, Attorney General of Guam, Warren Price, Attorney
General of Hawaii, Bonnie J. Campbell, Attorney General of Iowa, Michael
E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney
General of Maryland, Scott Harshbarger, Attorney General of Massachusetts,
Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III,
Attorney General of Minnesota, Frankie Sue Del Papa, Attorney General of
Nevada, Robert J. Del Tufo, Attorney General of New Jersey, John P.
Arnold, Attorney General of New Hampshire, Tom Udall, Attorney General of
New Mexico, Robert Abrams, Attorney General of New York, and Jerry Boone,
Solicitor General, Lacy H. Thornburg, Attorney General of North Carolina,
Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr.,
Attorney General of Pennsylvania, Jorges Perez‑Diaz, Attorney
General of Puerto Rico, James E. O'Neil, Attorney General of Rhode Island,
Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney
General of Vermont, James E. Doyle, Attorney General of Wisconsin, Dan
Morales, Attorney General of Texas, and Brian A. Goldman; for Broward
County et al. by John J. Copelan, Jr., Herbert W.A. Thiele, and H.
Hamilton Rice, Jr.; for California Cities and Counties by Robin D. Faisant,
Gary T. Ragghianti, Manuela Albuquerque, F. Thomas Caporael, William Camil,
Scott H. Howard, Roger Picquet, Joseph Barron, David J. Erwin, Charles J.
Williams, John Calhoun, Robert K. Booth, Jr., Anthony S. Alperin, Leland
H. Jordan, John L. Cook, Jayne Williams, Gary L. Gillig, Dave Larsen, Don
G. Kircher, Jean Leonard Harris, Michael F. Dean, John W. Witt, C. Alan
Sumption, Joan Gallo, George Rios, Daniel S. Hentschke, Joseph Lawrence,
Peter Bulens, and Thomas Haas; for Nueces County, Texas, et al. by Peter
A.A. Berle, Glenn P. Sugameli, Ann Powers, and Zygmunt J.B. Plater; for
the American Planning Association et al. by H. Bissell Carey III and Gary
A. Owen; for Members of the National Growth Management Leadership Project
by John A. Humbach; for the Municipal Art Society of New York, Inc., by
William E. Hegarty, Michael S. Gruen, Philip K. Howard, Norman Marcus, and
Philip Weinberg; for the National Trust for Historic Preservation in the
United States by Lloyd N. Cutler, Louis R. Cohen, David R. Johnson, Peter
B. Hutt II, Jerold S. Kayden, David A. Doheny, and Elizabeth S. Merritt;
for the Sierra Club et al. by Lawrence N. Minch, Laurens H. Silver, and
Charles M. Chambers; and for the U.S. Conference of Mayors et al. by
Richard Ruda, Michael G. Dzialo, and Barbara Etkind.
of amici curiae were filed for the National Association of Realtors by
Ralph W. Holmen; and for the Washington Legal Foundation by Daniel
J. Popeo and Paul D. Kamenar.
Justice SCALIA delivered the opinion of the Court.
1986, petitioner David H. Lucas paid $975,000 for two residential lots on
the Isle of Palms in Charleston County,
1007 South Carolina, on which he intended to build single-family
homes. In 1988,
however, the South Carolina Legislature enacted the Beachfront Management
Act, S.C.Code Ann. § 48-39-250 et seq. (Supp.1990), which had the direct
effect of barring petitioner from erecting any permanent habitable
structures on his two parcels.
See § 48-39-290(A). A
state trial court found that this prohibition rendered Lucas's parcels
"valueless." App. to Pet. for Cert. 37.
This case requires us to decide whether the Act's dramatic effect
on the economic value of Lucas's lots accomplished a taking of private
property under the Fifth and Fourteenth Amendments requiring the payment
of "just compensation."
U.S. Const., Amdt. 5.
Carolina's expressed interest in intensively managing development
activities in the so-called "coastal zone" dates from 1977 when,
in the aftermath of Congress's passage of the federal Coastal Zone
Management Act of 1972, 86 Stat. 1280, as amended, 16 U.S.C. § 1451 et
seq., the legislature enacted a Coastal Zone Management Act of its own.
See S.C.Code Ann. § 48-39-10 et seq. (1987). In its original form, the South Carolina Act required owners
of coastal zone land that qualified as a "critical area"
(defined in the legislation to include beaches and immediately adjacent
sand dunes, 1008 § 48-39-10(J))
to obtain a permit from the newly created South Carolina Coastal Council
(Council) (respondent here) prior to committing the land to a "use
other than the use the critical area was devoted to on [September 28,
1977]." § 48-39-130(A).
the late 1970's, Lucas and others began extensive residential development
of the Isle of Palms, a barrier island situated eastward of the city of
Charleston. Toward the
close of the development cycle for one residential subdivision known as
"Beachwood East," Lucas in 1986 purchased the two lots at issue
in this litigation for his own account.
No portion of the lots, which were located approximately 300 feet
from the beach, qualified as a "critical area" under the 1977
Act; accordingly, at the time
Lucas acquired these parcels, he was not legally obliged to obtain a
permit from the Council in advance of any development activity.
His intention with respect to the lots was to do what the owners of
the immediately adjacent parcels had already done:
erect single-family residences.
He commissioned architectural drawings for this purpose.
Beachfront Management Act brought Lucas's plans to an abrupt end.
Under that 1988 legislation, the Council was directed to establish
a "baseline" connecting the landward-most "point[s] of
erosion ... during the past forty years" in the region of the Isle of
Palms that includes Lucas's lots. S.C.Code Ann. § 48-39-280(A)(2)
(Supp.1988). [FN1] In action
not challenged here, the Council fixed this baseline landward of Lucas's
parcels. That was significant, for under the Act
1009 construction of occupiable improvements [FN2] was flatly prohibited seaward of a line drawn
20 feet landward of, and parallel to, the baseline.
§ 48-39-290(A). The
Act provided no exceptions.
specialized historical method of determining the baseline applied because
the Beachwood East subdivision is located adjacent to a so-called
"inlet erosion zone" (defined in the Act to mean "a segment
of shoreline along or adjacent to tidal inlets which are directly
influenced by the inlet and its associated shoals," S.C. Code Ann. §
48-39-270(7) (Supp.1988)) that is "not stabilized by jetties,
terminal groins, or other structures," § 48-39-280(A)(2).
For areas other than these unstabilized inlet erosion zones, the
statute directs that the baseline be established along "the crest of
an ideal primary oceanfront sand dune." § 48-39-280(A)(1).
The Act did allow the construction of certain nonhabitable improvements,
e.g., "wooden walkways no larger in width than six feet," and
"small wooden decks no larger than one hundred forty-four square
feet." §§ 48-39-290(A)(1)
Lucas promptly filed suit in the South Carolina Court of
Common Pleas, contending that the Beachfront Management Act's construction
bar effected a taking of his property without just compensation.
Lucas did not take issue with the validity of the Act as a lawful
exercise of South Carolina's police power, but contended that the Act's
complete extinguishment of his property's value entitled him to
compensation regardless of whether the legislature had acted in
furtherance of legitimate police power objectives.
Following a bench trial, the court agreed. Among its factual determinations was the finding that
"at the time Lucas purchased the two lots, both were zoned for
single‑ family residential construction and ... there were no
restrictions imposed upon such use of the property by either the State of
South Carolina, the County of Charleston, or the Town of the Isle of
Palms." App. to
Pet. for Cert. 36. The trial court further found that the Beachfront
Management Act decreed a permanent ban on construction insofar as Lucas's
lots were concerned, and that this prohibition "deprive[d] Lucas of
any reasonable economic use of the lots, ... eliminated the unrestricted
right of use, and render[ed] them valueless." Id., at 37. The
court thus concluded that Lucas's properties had been "taken" by
operation of the Act, and it ordered respondent to pay "just
compensation" in the amount of $1,232,387.50.
Id., at 40.
The Supreme Court of South Carolina reversed.
It found dispositive what it described as Lucas's concession
"that the 1010 Beachfront
Management Act [was] properly and validly designed to preserve ... South
Carolina's beaches." 304
S.C. 376, 379, 404 S.E.2d 895, 896 (1991).
Failing an attack on the validity of the statute as such, the court
believed itself bound to accept the "uncontested ... findings"
of the South Carolina Legislature that new construction in the coastal
zone -- such as petitioner intended -- threatened this public resource. Id., at 383, 404 S.E.2d, at 898. The court ruled that when a regulation respecting the
use of property is designed "to prevent serious public harm,"
id., at 383, 404 S.E.2d, at 899 (citing, inter alia, Mugler v. Kansas, 123
U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887)), no compensation is owing
under the Takings Clause regardless of the regulation's effect on the
Two justices dissented.
They acknowledged that our Mugler line of cases recognizes
governmental power to prohibit "noxious" uses of property --
i.e., uses of property akin to "public nuisances" -- without
having to pay compensation. But
they would not have characterized the Beachfront Management Act's
"primary purpose [as] the prevention of a nuisance."
304 S.C., at 395, 404 S.E.2d, at 906 (Harwell, J., dissenting).
To the dissenters, the chief purposes of the legislation, among
them the promotion of tourism and the creation of a "habitat for
indigenous flora and fauna," could not fairly be compared to nuisance
abatement. Id., at 396, 404
S.E.2d, at 906. As a
consequence, they would have affirmed the trial court's conclusion that
the Act's obliteration of the value of petitioner's lots accomplished a
We granted certiorari. 502
U.S. 966, 112 S.Ct. 436, 116 L.Ed.2d 455
As a threshold matter, we must briefly address
the Council's suggestion that this case is inappropriate for plenary
review. After briefing
and argument before the South Carolina Supreme Court, but prior to
issuance of that court's opinion, the Beachfront Management Act was
amended to 1011 authorize the Council, in certain circumstances,
to issue "special permits" for the construction or
reconstruction of habitable structures seaward of the baseline.
See S.C.Code Ann. § 48-39-290(D)(1) (Supp.1991).
According to the Council, this amendment renders Lucas's claim of a
permanent deprivation unripe, as Lucas may yet be able to secure
permission to build on his property.
"[The Court's] cases," we are reminded, "uniformly
reflect an insistence on knowing the nature and extent of permitted
development before adjudicating the constitutionality of the regulations
that purport to limit it." MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340,
351, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285 (1986).
See also Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct.
2138, 2141, 65 L.Ed.2d 106 (1980).
Because petitioner "has not yet obtained a final decision
regarding how [he] will be allowed to develop [his] property,"
Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 190, 105 S.Ct. 3108, 3118, 87 L.Ed.2d 126 (1985), the
Council argues that he is not yet entitled to definitive adjudication of
his takings claim in this Court.
We think these considerations would preclude review had the
South Carolina Supreme Court rested its judgment on ripeness grounds, as
it was (essentially) invited to do by the Council.
See Brief for Respondent 9, n. 3.
The South Carolina Supreme Court shrugged off the possibility of
further administrative and trial proceedings, however, preferring to
dispose of Lucas's takings claim on the merits.
Cf., e.g., San Diego Gas & Electric Co. v. San Diego, 450 U.S.
621, 631-632, 101 S.Ct. 1287, 1293-1294, 67 L.Ed.2d 551 (1981).
This unusual disposition does not preclude Lucas from applying for
a permit under the 1990 amendment for future construction, and
challenging, on takings grounds, any denial.
But it does preclude, both practically and legally, any takings
claim with respect to Lucas's past deprivation, i.e., for his having been
denied construction rights during the period before the 1990 amendment.
See generally First English Evangelical Lutheran Church of Glendale
v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250
(1987) (holding that 1012
temporary deprivations of use are compensable under the Takings Clause).
Without even so much as commenting upon the consequences of the
South Carolina Supreme Court's judgment in this respect, the Council
insists that permitting Lucas to press his claim of a past deprivation on
this appeal would be improper, since "the issues of whether and to
what extent [Lucas] has incurred a temporary taking ... have simply never
been addressed." Brief
for Respondent 11. Yet
Lucas had no reason to proceed on a "temporary taking" theory at
trial, or even to seek remand for that purpose prior to submission of the
case to the South Carolina Supreme Court, since as the Act then read, the
taking was unconditional and permanent. Moreover, given the breadth of the
South Carolina Supreme Court's holding and judgment, Lucas would plainly
be unable (absent our intervention now) to obtain further state-court
adjudication with respect to the 1988-1990 period.
In these circumstances, we think it would not accord with
sound process to insist that Lucas pursue the late-created "special
permit" procedure before his takings claim can be considered ripe.
Lucas has properly alleged Article III injury in fact in this case,
with respect to both the pre-1990 and post-1990 constraints placed on the
use of his parcels by the Beachfront Management Act. [FN3]
That there is a discretionary "
1013 special permit" procedure by which he may regain -- for the
future, at least -- beneficial use of his land goes only to the prudential
"ripeness" of Lucas's challenge, and for the reasons discussed
we do not think it prudent to apply that prudential requirement here.
See Esposito v. South Carolina Coastal Council, 939 F.2d 165, 168
(CA4 1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d 898
(1992). [FN4] We leave for
decision on remand, of course, the questions left unaddressed by the South
1014 Carolina Supreme Court as a consequence of its categorical
FN3. Justice BLACKMUN insists that this aspect of Lucas's claim is
"not justiciable," post, at 2907, because Lucas never fulfilled
his obligation under Williamson County Regional Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d
126 (1985), to "submi[t] a plan for development of [his]
property" to the proper state authorities, id., at 187, 105 S.Ct., at
3117. See post, at 2907.
But such a submission would have been pointless, as the Council
stipulated below that no building permit would have been issued under the
1988 Act, application or no application.
Record 14 (stipulations).
Nor does the peculiar posture of this case mean that we are without
Article III jurisdiction, as Justice BLACKMUN apparently believes.
See post, at 2907, and n. 5.
Given the South Carolina Supreme Court's dismissive foreclosure of
further pleading and adjudication with respect to the pre-1990 component
of Lucas's takings claim, it is appropriate for us to address that
component as if the case were here on the pleadings alone.
Lucas properly alleged injury in fact in his complaint.
See App. to Pet. for Cert. 154 (complaint);
id., at 156 (asking "damages for the temporary taking of his
property" from the date of the 1988 Act's passage to "such time
as this matter is finally resolved").
No more can reasonably be demanded.
Cf. First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 312-313, 107 S.Ct. 2378, 2384, 96 L.Ed.2d
250 (1987). Justice
BLACKMUN finds it "baffling," post, at 2908, n. 5, that we grant
standing here, whereas "just a few days ago, in Lujan v. Defenders of
Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)," we
denied standing. He
sees in that strong evidence to support his repeated imputations that the
Court "presses" to take this case, post, at 2904, is "eager
to decide" it, post, at 2909, and is unwilling to "be
denied," post, at 2907. He has a point: The
decisions are indeed very close in time, yet one grants standing and the
other denies it. The
distinction, however, rests in law rather than chronology.
Lujan, since it involved the establishment of injury in fact at the
summary judgment stage, required specific facts to be adduced by sworn
testimony; had the same
challenge to a generalized allegation of injury in fact been made at the
pleading stage, it would have been unsuccessful.
FN4. In that case, the Court of Appeals for the Fourth Circuit
reached the merits of a takings challenge to the 1988 Beachfront
Management Act identical to the one Lucas brings here even though the Act
was amended, and the special permit procedure established, while the case
was under submission. The
court observed: "The enactment of the 1990 Act during the pendency of
this appeal, with its provisions for special permits and other changes
that may affect the plaintiffs, does not relieve us of the need to address
the plaintiffs' claims under the provisions of the 1988 Act.
Even if the amended Act cured all of the plaintiffs' concerns, the
amendments would not foreclose the possibility that a taking had occurred
during the years when the 1988 Act was in effect."
Esposito v. South Carolina Coastal Council, 939 F.2d 165, 168
FN5. Justice BLACKMUN states that our "intense interest in
Lucas' plight ... would have been more prudently expressed by vacating the
judgment below and remanding for further consideration in light of the
1990 amendments" to the Beachfront Management Act. Post, at 2909, n. 7.
That is a strange suggestion, given that the South Carolina Supreme
Court rendered its categorical disposition in this case after the Act had
been amended, and after it had been invited to consider the effect of
those amendments on Lucas's case.
We have no reason to believe that the justices of the South
Carolina Supreme Court are any more desirous of using a narrower ground
now than they were then; and
neither "prudence" nor any other principle of judicial restraint
requires that we remand to find out whether they have changed their mind.
Prior to Justice
Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43
S.Ct. 158, 67 L.Ed. 322 (1922), it was generally thought that the Takings
Clause reached only a "direct appropriation" of property, Legal
Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287 (1871), or the functional
equivalent of a "practical ouster of [the owner's] possession,"
Transportation Co. v. Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879). See also Gibson v. United States, 166 U.S. 269,
275‑276, 17 S.Ct. 578, 580, 41 L.Ed. 996 (1897).
Justice Holmes recognized in Mahon, however, that if the protection
against physical appropriations of private property was to be meaningfully
enforced, the government's power to redefine the range of interests
included in the ownership of property was necessarily constrained by
constitutional limits. 260
U.S., at 414-415, 43 S.Ct., at 160.
If, instead, the uses of private property were subject to
unbridled, uncompensated qualification
under the police power, "the natural tendency of human nature
[would be] to extend the qualification more and more until at last private
property disappear[ed]." Id.,
at 415, 43 S.Ct., at 160. These
considerations gave birth in that case to the oft-cited maxim that,
"while property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking."
1015 Nevertheless, our decision in Mahon offered little insight
into when, and under what circumstances, a given regulation would be seen
as going "too far" for purposes of the Fifth Amendment.
In 70-odd years of succeeding "regulatory takings"
jurisprudence, we have generally eschewed any " 'set formula' "
for determining how far is too far, preferring to "engag [e] in ...
essentially ad hoc, factual inquiries."
Penn Central Transportation Co. v. New York City, 438 U.S. 104,
124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) (quoting Goldblatt v.
Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962)).
See Epstein, Takings: Descent
and Resurrection, 1987 S.Ct. Rev. 1, 4.
We have, however, described at least two discrete categories of
regulatory action as compensable without case-specific inquiry into the
public interest advanced in support of the restraint.
The first encompasses regulations that compel the property owner to
suffer a physical "invasion" of his property.
In general (at least with regard to permanent invasions), no matter
how minute the intrusion, and no matter how weighty the public purpose
behind it, we have required compensation.
For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), we determined that New
York's law requiring landlords to allow television cable companies to
emplace cable facilities in their apartment buildings constituted a
taking, id., at 435-440, 102 S.Ct., at 3175-3178, even though the
facilities occupied at most only 1 1/2 cubic feet of the landlords'
property, see id., at 438, n. 16, 102 S.Ct., at 3177.
See also United States v. Causby, 328 U.S. 256, 265, and n. 10, 66
S.Ct. 1062, 1067, and n. 10, 90 L.Ed. 1206 (1946) (physical invasions of
airspace); cf. Kaiser Aetna
v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)
(imposition of navigational servitude upon private marina).
The second situation
in which we have found categorical treatment appropriate is where
regulation denies all economically beneficial or productive use of land.
See Agins, 447 U.S., at 260, 100 S.Ct., at 2141;
see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834,
107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987);
Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495,
107 S.Ct. 1232, 1247, 94 L.Ed.2d 472 (1987);
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
 U.S. 264, 295‑ 296, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1
(1981). [FN6] As we have said
on numerous occasions, the Fifth Amendment is violated when land‑use
regulation "does not substantially advance legitimate state interests
or denies an owner economically viable use of his land."
Agins, supra, 447 U.S., at 260, 100 S.Ct., at 2141 (citations
omitted) (emphasis added). [FN7]
FN6. We will not attempt to respond to all of Justice BLACKMUN's
mistaken citation of case precedent.
Characteristic of its nature is his assertion that the cases we
discuss here stand merely for the proposition "that proof that a
regulation does not deny an owner economic use of his property is
sufficient to defeat a facial takings challenge" and not for the
point that "denial of such use is sufficient to establish a takings
claim regardless of any other consideration."
Post, at 2911, n. 11. The
cases say, repeatedly and unmistakably, that " '[t]he test to be
applied in considering [a] facial [takings] challenge is fairly
straightforward. A statute regulating the uses that can be made of
property effects a taking if it "denies an owner economically viable
use of his land." ' " Keystone, 480 U.S., at 495, 107 S.Ct., at
1247 (quoting Hodel, 452 U.S., at 295‑296, 101 S.Ct., at 2370
(quoting Agins, 447 U.S., at 260, 100 S.Ct., at 2141)) (emphasis added).
Justice BLACKMUN describes that rule (which we do not invent but
merely apply today) as "alter[ing] the long-settled rules of
review" by foisting on the State "the burden of showing [its]
regulation is not a taking." Post, at 2909.
This is of course wrong.
Lucas had to do more than simply file a lawsuit to establish his
constitutional entitlement; he
had to show that the Beachfront Management Act denied him economically
beneficial use of his land. Our
analysis presumes the unconstitutionality of state land-use regulation
only in the sense that any rule with exceptions presumes the invalidity of
a law that violates it -- for example, the rule generally prohibiting
content-based restrictions on speech.
See, e.g., Simon & Schuster, Inc. v. N.Y. Members of State
Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 508, 116 L.Ed.2d 476
(1991) ("A statute is presumptively inconsistent with the First
Amendment if it imposes a financial burden on speakers because of the
content of their speech"). Justice BLACKMUN's real quarrel is with
the substantive standard of liability we apply in this case, a long-established
standard we see no need to repudiate.
FN7. Regrettably, the rhetorical force of our "deprivation of
all economically feasible use" rule is greater than its precision,
since the rule does not make clear the "property interest"
against which the loss of value is to be measured.
When, for example, a regulation requires a developer to leave 90%
of a rural tract in its natural state, it is unclear whether we would
analyze the situation as one in which the owner has been deprived of all
economically beneficial use of the burdened portion of the tract, or as
one in which the owner has suffered a mere diminution in value of the
tract as a whole. (For an
extreme -- and, we think, unsupportable -- view of the relevant calculus,
see Penn Central Transportation Co. v. New York City, 42 N.Y.2d 324,
333-334, 397 N.Y.S.2d 914, 920, 366 N.E.2d 1271, 1276-1277 (1977), aff'd,
438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), where the state court
examined the diminution in a particular parcel's value produced by a
municipal ordinance in light of total value of the takings claimant's
other holdings in the vicinity.)
Unsurprisingly, this uncertainty regarding the composition of the
denominator in our "deprivation" fraction has produced
inconsistent pronouncements by the Court.
Compare Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414, 43 S.Ct.
158, 160, 67 L.Ed. 322 (1922) (law restricting subsurface extraction of
coal held to effect a taking), with Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U.S. 470, 497-502, 107 S.Ct. 1232, 1248-1251, 94 L.Ed.2d
472 (1987) (nearly identical law held not to effect a taking);
see also id., at 515-520, 107 S.Ct., at 1257-1260 (REHNQUIST, C.J.,
dissenting); Rose, Mahon Reconstructed:
Why the Takings Issue is Still a Muddle, 57 S.Cal.L.Rev. 561, 566-569
(1984). The answer to this difficult question may lie in how
the owner's reasonable expectations have been shaped by the State's law of
property -- i.e., whether and to what degree the State's law has accorded
legal recognition and protection to the particular interest in land with
respect to which the takings claimant alleges a diminution in (or
elimination of) value. In
any event, we avoid this difficulty in the present case, since the
"interest in land" that Lucas has pleaded (a fee simple
interest) is an estate with a rich tradition of protection at common law,
and since the South Carolina Court of Common Pleas found that the
Beachfront Management Act left each of Lucas's beachfront lots without
1017 We have never set
forth the justification for this rule.
Perhaps it is simply, as Justice Brennan suggested, that total
deprivation of beneficial use is, from the landowner's point of view, the
equivalent of a physical appropriation.
See San Diego Gas & Electric Co. v. San Diego, 450 U.S., at
652, 101 S.Ct., at 1304 (dissenting opinion).
"[F]or what is the land but the profits thereof[?]"
1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812). Surely, at
least, in the extraordinary circumstance when no productive or
economically beneficial use of land is permitted, it is less realistic to
indulge our usual assumption that the legislature is simply
"adjusting the benefits and burdens of economic life," Penn
Central Transportation Co., 438 1018 U.S., at 124, 98 S.Ct., at 2659, in a manner that secures an
"average reciprocity of advantage" to everyone concerned,
Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415, 43 S.Ct., at 160.
And the functional basis for permitting the government, by
regulation, to affect property values without compensation -- that
"Government hardly could go on if to some extent values incident to
property could not be diminished without paying for every such change in
the general law," id., at 413, 43 S.Ct., at 159 -- does not apply to
the relatively rare situations where the government has deprived a
landowner of all economically beneficial uses.
On the other side of
the balance, affirmatively supporting a compensation requirement, is the
fact that regulations that leave the owner of land without economically
beneficial or productive options for its use -- typically, as here, by
requiring land to be left substantially in its natural state -- carry with
them a heightened risk that private property is being pressed into some
form of public service under the guise of mitigating serious public harm.
See, e.g., Annicelli v. South Kingstown, 463 A.2d 133, 140141
(R.I.1983) (prohibition on construction adjacent to beach justified on
twin grounds of safety and "conservation of open space");
Morris County Land Improvement Co. v. Parsippany-Troy Hills
Township, 40 N.J. 539, 552-553, 193 A.2d 232, 240 (1963) (prohibition on
filling marshlands imposed in order to preserve region as water detention
basin and create wildlife refuge).
As Justice Brennan explained:
"From the government's point of view, the benefits flowing to
the public from preservation of open space through regulation may be
equally great as from creating a wildlife refuge through formal
condemnation or increasing electricity production through a dam project
that floods private property." San
Diego Gas & Elec. Co., supra, 450 U.S., at 652, 101 S.Ct., at 1304
(dissenting opinion). The
many statutes on the books, both state and federal, that
1019 provide for the use of eminent domain to impose servitudes on
private scenic lands preventing developmental uses, or to acquire such
lands altogether, suggest the practical equivalence in this setting of
negative regulation and appropriation.
See, e.g., 16 U.S.C. § 410ff‑ 1(a) (authorizing acquisition
of "lands, waters, or interests [within Channel Islands National
Park] (including but not limited to scenic easements)");
§ 460aa-2(a) (authorizing acquisition of "any lands, or
lesser interests therein, including mineral interests and scenic
easements" within Sawtooth National Recreation Area);
§§ 3921-3923 (authorizing acquisition of wetlands);
N.C. Gen.Stat. § 113A-38 (1990) (authorizing acquisition of, inter
alia, " 'scenic easements' " within the North Carolina natural
and scenic rivers system); Tenn.Code Ann. §§ 11-15-101 to 11-15-108
(1987) (authorizing acquisition of "protective easements" and
other rights in real property adjacent to State's historic, architectural,
archaeological, or cultural resources).
We think, in
short, that there are good reasons for our frequently expressed belief
that when the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to
leave his property economically idle, he has suffered a taking. [FN8]
FN8. Justice STEVENS criticizes the "deprivation of all
economically beneficial use" rule as "wholly arbitrary," in
that "[the] landowner whose property is diminished in value 95%
recovers nothing," while the landowner who suffers a complete
elimination of value "recovers the land's full value."
Post, at 2919. This
analysis errs in its assumption that the landowner whose deprivation is
one step short of complete is not entitled to compensation.
Such an owner might not be able to claim the benefit of our
categorical formulation, but, as we have acknowledged time and again,
"[t]he economic impact of the regulation on the claimant and ... the
extent to which the regulation has interfered with distinct investment-backed
expectations" are keenly relevant to takings analysis generally. Penn Central Transportation Co. v. New York City, 438 U.S.
104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). It is true that in at least some cases the landowner
with 95% loss will get nothing, while the landowner with total loss will
recover in full. But
that occasional result is no more strange than the gross disparity between
the landowner whose premises are taken for a highway (who recovers in
full) and the landowner whose property is reduced to 5% of its former
value by the highway (who recovers nothing).
Takings law is full of these "all-or-nothing"
situations. Justice STEVENS similarly misinterprets our focus on
"developmental" uses of property (the uses proscribed by the
Beachfront Management Act) as betraying an "assumption that the only
uses of property cognizable under the Constitution are developmental
uses." Post, at
2919, n. 3. We make no
such assumption. Though
our prior takings cases evince an abiding concern for the productive use
of, and economic investment in, land, there are plainly a number of
noneconomic interests in land whose impairment will invite exceedingly
close scrutiny under the Takings Clause.
See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 436, 102 S.Ct. 3164, 3176, 73 L.Ed.2d 868 (1982) (interest in
excluding strangers from one's land).
The trial court
found Lucas's two beachfront lots to have been rendered valueless by
respondent's enforcement of the coastal‑zone construction ban. [FN9]
Under Lucas's theory of the case, which rested upon our "no
economically viable use" statements, that finding entitled him to
believed it unnecessary to take issue with either the purposes behind the
Beachfront Management Act, or the means chosen by the South Carolina
Legislature to effectuate those purposes.
The South Carolina Supreme Court, however, thought otherwise.
In its view, the Beachfront Management Act was no ordinary
enactment, but involved an exercise of South Carolina's "police
powers" to mitigate the harm to the public interest that petitioner's
use of his 1021 land might
occasion. 304 S.C., at 384,
404 S.E.2d, at 899. By
neglecting to dispute the findings enumerated in the Act
[FN10] or otherwise to challenge the legislature's purposes,
1022 petitioner "concede [d] that the beach/dune area of South
Carolina's shores is an extremely valuable public resource;
that the erection of new construction, inter alia, contributes to
the erosion and destruction of this public resource;
and that discouraging new construction in close proximity to the
beach/dune area is necessary to prevent a great public harm."
Id., at 382-383, 404 S.E.2d, at 898.
In the court's view, these concessions brought petitioner's
challenge within a long line of this Court's cases sustaining against Due Process and Takings Clause challenges the State's use of its
"police powers" to enjoin a property owner from activities akin
to public nuisances. See
Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (law
prohibiting manufacture of alcoholic beverages);
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915) (law barring operation of brick mill in residential area);
Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928)
(order to destroy diseased cedar trees to prevent infection of nearby
orchards); Goldblatt v.
Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (law
effectively preventing continued operation of quarry in residential area).
FN9. This finding was the premise of the petition for certiorari,
and since it was not challenged in the brief in opposition we decline to
entertain the argument in respondent's brief on the merits, see Brief for
Respondent 45-50, that the finding was erroneous. Instead, we decide the question presented under the
same factual assumptions as did the Supreme Court of South Carolina.
See Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427,
2432, 85 L.Ed.2d 791 (1985).
FN10. The legislature's express findings include the following:
"The General Assembly finds that:
"(1) The beach/dune system along the coast of South Carolina
is extremely important to the people of this State and serves the
"(a) protects life and property by serving as a storm barrier
which dissipates wave energy and contributes to shoreline stability in an
economical and effective manner;
"(b) provides the basis for a tourism industry that generates
approximately two-thirds of South Carolina's annual tourism industry
revenue which constitutes a significant portion of the state's economy.
The tourists who come to the South Carolina coast to enjoy the
ocean and dry sand beach contribute significantly to state and local tax
"(c) provides habitat for numerous species of plants and
animals, several of which are threatened or endangered.
Waters adjacent to the beach/dune system also provide habitat for
many other marine species; "(d) provides a natural health environment
for the citizens of South Carolina to spend leisure time which serves
their physical and mental well-being.
"(2) Beach/dune system vegetation is unique and extremely
important to the vitality and preservation of the system.
"(3) Many miles of South Carolina's beaches have been
identified as critically eroding.
"(4) ... [D]evelopment unwisely has been sited too close to
the [beach/dune] system. This
type of development has jeopardized the stability of the beach/dune
system, accelerated erosion, and endangered adjacent property.
It is in both the public and private interests to protect the
system from this unwise development.
"(5) The use of armoring in the form of hard erosion control
devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened
structures adjacent to the beach has not proven effective.
These armoring devices have given a false sense of security to
beachfront property owners. In reality, these hard structures, in many instances,
have increased the vulnerability of beachfront property to damage from
wind and waves while contributing to the deterioration and loss of the dry
sand beach which is so important to the tourism industry. "
(6) Erosion is a natural process which becomes a significant
problem for man only when structures are erected in close proximity to the
beach/dune system. It
is in both the public and private interests to afford the beach/dune
system space to accrete and erode in its natural cycle.
This space can be provided only by discouraging new construction in
close proximity to the beach/dune system and encouraging those who have
erected structures too close to the system to retreat from it.
* * *
"(8) It is in the state's best interest to protect and to
promote increased public access to South Carolina's beaches for out-of-state
tourists and South Carolina residents alike." S.C. Code Ann. § 48-39-250 (Supp.1991).
It is correct that
many of our prior opinions have suggested that
"harmful or noxious uses" of property may be proscribed
by government regulation without the requirement of compensation.
For a number of reasons, however, we think the South Carolina
Supreme Court was too quick to conclude that that principle decides the
present case. The
"harmful or noxious uses" principle was the Court's early
attempt to describe in theoretical terms why government 1023 may, consistent with the Takings Clause, affect property
values by regulation without incurring an obligation to compensate -- a
reality we nowadays acknowledge explicitly with respect to the full scope
of the State's police power. See,
e.g., Penn Central Transportation Co., 438 U.S., at 125, 98 S.Ct., at 2659
(where State "reasonably conclude[s] that 'the health, safety,
morals, or general welfare' would be promoted by prohibiting particular
contemplated uses of land," compensation need not accompany
prohibition); see also Nollan
v. California Coastal Comm'n, 483 U.S., at 834-835, 107 S.Ct., at 3147
("Our cases have not elaborated on the standards for determining what
constitutes a 'legitimate state interest[,]' [but] [t]hey have made clear
... that a broad range of governmental purposes and regulations satisfy
these requirements"). We
made this very point in Penn Central Transportation Co., where, in the
course of sustaining New York City's landmarks preservation program
against a takings challenge, we rejected the petitioner's suggestion that
Mugler and the cases following it were premised on, and thus limited by,
some objective conception of "noxiousness":
"[T]he uses in
issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in
involved no 'blameworthiness, ... moral wrongdoing or conscious act of
dangerous risk-taking which induce[d society] to shift the cost to a
pa[rt]icular individual.' Sax,
Takings and the Police Power, 74 Yale L.J. 36, 50 (1964).
These cases are better understood as resting not on any supposed
'noxious' quality of the prohibited uses but rather on the ground that the
restrictions were reasonably related to the implementation of a policy --
not unlike historic preservation -- expected to produce a widespread
public benefit and applicable to all similarly situated property."
438 U.S., at 133-134, n. 30, 98 S.Ct., at 2664, n. 30.
"Harmful or noxious use" analysis was, in other words,
simply the progenitor of our more contemporary statements that 1024 "land-use regulation does not effect a taking if it
'substantially advance[s] legitimate state interests'...."
Nollan, supra, 483 U.S., at 834, 107 S.Ct., at 3147 (quoting Agins
v. Tiburon, 447 U.S., at 260, 100 S.Ct., at 2141);
see also Penn Central Transportation Co., supra, 438 U.S., at 127,
98 S.Ct., at 2660; Euclid v.
Ambler Realty Co., 272 U.S. 365, 387-388, 47 S.Ct. 114, 118, 71 L.Ed. 303
The transition from our early focus on control of
"noxious" uses to our contemporary understanding of the broad
realm within which government may regulate without compensation was an
easy one, since the distinction between "harm-preventing" and
"benefit-conferring" regulation is often in the eye of the
beholder. It is quite possible, for
example, to describe in either fashion the ecological, economic, and
esthetic concerns that inspired the South Carolina Legislature in the
present case. One could
say that imposing a servitude on Lucas's land is necessary in order to
prevent his use of it from "harming" South Carolina's ecological
resources; or, instead, in
order to achieve the "benefits" of an ecological preserve.
[FN11] Compare, e.g.,
Claridge v. New Hampshire 1025
Wetlands Board, 125 N.H. 745, 752, 485 A.2d 287, 292 (1984) (owner may,
without compensation, be barred from filling wetlands because landfilling
would deprive adjacent coastal habitats and marine fisheries of ecological
support), with, e.g., Bartlett v. Zoning Comm'n of Old Lyme, 161 Conn. 24,
30, 282 A.2d 907, 910 (1971) (owner barred from filling tidal marshland
must be compensated, despite municipality's "laudable" goal of
"preserv[ing] marshlands from encroachment or destruction").
Whether one or the other of the competing characterizations will
come to one's lips in a particular case depends primarily upon one's
evaluation of the worth of competing uses of real estate.
See Restatement (Second) of Torts § 822, Comment g, p. 112 (1979)
("Practically all human activities unless carried on in a wilderness
interfere to some extent with others or involve some risk of
given restraint will be seen as mitigating "harm" to the
adjacent parcels or securing a "benefit" for them, depending
upon the observer's evaluation of the relative importance of the use that
the restraint favors. See
Sax, Takings and the Police Power, 74 Yale L.J. 36, 49 (1964) ("[T]he
problem [in this area] is not one of noxiousness or harm-creating activity
at all; rather it is a
problem of inconsistency between perfectly innocent and independently
desirable uses"). Whether
Lucas's construction of single-family residences on his parcels should be
described as bringing "harm" to South Carolina's adjacent
ecological resources thus depends principally upon whether the describer
believes that the State's use interest in nurturing those resources is so
important that any competing adjacent use must yield. [FN12]
FN11. In the present case,
in fact, some of the "[South Carolina] legislature's 'findings'
" to which the South Carolina Supreme Court purported to defer in
characterizing the purpose of the Act as "harm-preventing," 304
S.C. 376, 385, 404 S.E.2d 895, 900 (1991), seem to us phrased in
"benefit-conferring" language instead.
For example, they describe the importance of a construction ban in
enhancing "South Carolina's annual tourism industry revenue,"
S.C. Code Ann. § 48-39-250(1)(b) (Supp.1991), in "provid[ing]
habitat for numerous species of plants and animals, several of which are
threatened or endangered," § 48-39-250(1)(c), and in "provid[ing]
a natural healthy environment for the citizens of South Carolina to spend
leisure time which serves their physical and mental well-being," §
would be pointless to make the outcome of this case hang upon this
terminology, since the same interests could readily be described in
however, apparently insists that we must make the outcome hinge
(exclusively) upon the South Carolina Legislature's other,
"harm-preventing" characterizations, focusing on the declaration
that "prohibitions on building in front of the setback line are
necessary to protect people and property from storms, high tides, and
beach erosion." Post, at 2906.
He says "[n]othing in the record undermines [this]
assessment," ibid., apparently seeing no significance in the fact
that the statute permits owners of existing structures to remain (and even
to rebuild if their structures are not "destroyed beyond
repair," S.C. Code Ann. § 48-39-290(B) (Supp.1988)), and in the fact
that the 1990 amendment authorizes the Council to issue permits for new
construction in violation of the uniform prohibition, see S.C. Code Ann.
§ 48-39-290(D)(1) (Supp.1991).
In Justice BLACKMUN's view, even with respect to regulations that deprive
an owner of all developmental or economically beneficial land uses, the
test for required compensation is whether the legislature has recited a
harm-preventing justification for its action.
See post, at 2906, 2910-2912.
Since such a justification can be formulated in practically every
case, this amounts to a test of whether the legislature has a stupid
staff. We think the Takings Clause requires courts to do more
than insist upon artful harm-preventing characterizations.
1026 When it is understood that "prevention of harmful use"
was merely our early formulation of the police power justification
necessary to sustain (without compensation) any
regulatory diminution in value; and that the distinction between
regulation that "prevents harmful use" and that which
"confers benefits" is difficult, if not impossible, to discern
on an objective, value-free basis; it
becomes self-evident that noxious-use logic cannot serve as a touchstone
to distinguish regulatory "takings" -- which require
compensation -- from regulatory deprivations that do not require
compensation. A fortiori the
legislature's recitation of a noxious-use justification cannot be the
basis for departing from our categorical rule that total regulatory
takings must be compensated. If
it were, departure would virtually always be allowed.
The South Carolina Supreme Court's approach would essentially
nullify Mahon' s affirmation of limits to the noncompensable exercise of
the police power. Our
cases provide no support for this: None
of them that employed the logic of "harmful use" prevention to
sustain a regulation involved an allegation that the regulation wholly
eliminated the value of the claimant's land.
See Keystone Bituminous Coal Assn., 480 U.S., at 513-514, 107 S.Ct.,
at 1257 (REHNQUIST, C.J., dissenting). [FN13]
FN13. E.g., Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed.
205 (1887) (prohibition upon use of a building as a brewery;
other uses permitted); Plymouth
Coal Co. v. Pennsylvania, 232 U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713 (1914)
(requirement that "pillar" of coal be left in ground to
safeguard mine workers; mineral rights could otherwise be exploited);
Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900
(1915) (declaration that livery stable constituted a public nuisance;
other uses of the property permitted);
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915) (prohibition of brick manufacturing in residential area;
other uses permitted); Goldblatt v. Hempstead, 369 U.S. 590, 82
S.Ct. 987, 8 L.Ed.2d 130 (1962) (prohibition on excavation;
other uses permitted).
1027 Where the State
seeks to sustain regulation that deprives land of all economically
beneficial use, we think it may resist compensation only if the logically
antecedent inquiry into the nature of the owner's estate shows that the
proscribed use interests were not part of his title to begin with. [FN14]
This accords, we think, with our "takings" jurisprudence,
which has traditionally been guided by the understandings of our citizens
regarding the content of, and the State's power over, the "bundle of
rights" that they acquire when they obtain title to property.
It seems to us that the property owner necessarily expects the uses
of his property to be restricted, from time to time, by various measures
newly enacted by the State in legitimate exercise of its police powers;
"[a]s long recognized, some values are enjoyed under an
implied limitation and must yield to the police power."
Pennsylvania Coal Co. v. Mahon, 260 U.S., at 413, 43 S.Ct., at 159.
And in the case of personal property, by reason of the State's
traditionally high degree of control over commercial dealings, he ought to
be aware of the possibility that new regulation might even render
1028 his property economically worthless (at least if the property's
only economically productive use is sale or manufacture for sale).
See Andrus v. Allard, 444 U.S. 51, 66‑67, 100 S.Ct. 318, 327, 62 L.Ed.2d 210 (1979) (prohibition on sale of eagle feathers).
In the case of land, however, we think the notion pressed by the Council
that title is somehow held subject to the "implied limitation"
that the State may subsequently eliminate all economically valuable use is
inconsistent with the historical compact recorded in the Takings Clause
that has become part of our constitutional culture. [FN15]
FN14. Drawing on our First Amendment jurisprudence, see, e.g.,
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872,
878-879, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876 (1990), Justice STEVENS
would "loo[k] to the generality of a regulation of property" to
determine whether compensation is owing.
Post, at 2923. The
Beachfront Management Act is general, in his view, because it
"regulates the use of the coastline of the entire State."
Post, at 2924. There
may be some validity to the principle Justice STEVENS proposes, but it
does not properly apply to the present case.
The equivalent of a law of general application that inhibits the
practice of religion without being aimed at religion, see Oregon v. Smith,
supra, is a law that destroys the value of land without being aimed at
land. Perhaps such a
law -- the generally applicable criminal prohibition on the manufacturing
of alcoholic beverages challenged in Mugler comes to mind -- cannot
constitute a compensable taking.
See 123 U.S., at 655-656, 8 S.Ct., at 293-294.
But a regulation specifically directed to land use no more acquires
immunity by plundering landowners generally than does a law specifically
directed at religious practice acquire immunity by prohibiting all
STEVENS's approach renders the Takings Clause little more than a
particularized restatement of the Equal Protection Clause.
FN15. After accusing us of "launch[ing] a missile to kill a
mouse," post, at 2904, Justice BLACKMUN expends a good deal of throw-weight
of his own upon a noncombatant, arguing that our description of the
"understanding" of land ownership that informs the Takings
Clause is not supported by early American experience.
That is largely true, but entirely irrelevant. The practices of the States prior to incorporation of
the Takings and Just Compensation Clauses, see Chicago, B. & Q.R. Co.
v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) -- which, as
Justice BLACKMUN acknowledges, occasionally included outright physical
appropriation of land without compensation, see post, at 2915 -- were out
of accord with any plausible interpretation of those provisions.
Justice BLACKMUN is correct that early constitutional theorists did
not believe the Takings Clause embraced regulations of property at all,
see post, at 2915, and n. 23, but even he does not suggest (explicitly, at
least) that we renounce the Court's contrary conclusion in Mahon. Since the text of the Clause can be read to encompass
regulatory as well as physical deprivations (in contrast to the text
originally proposed by Madison, see Speech Proposing Bill of Rights (June
8, 1789), in 12 J. Madison, The Papers of James Madison 201 (C. Hobson, R.
Rutland, W. Rachal, & J. Sisson ed. 1979) ("No person shall be
... obliged to relinquish his property, where it may be necessary for
public use, without a just compensation"), we decline to do so as
physical occupation" of land is concerned, we have refused to allow
the government to decree it anew (without compensation), no matter how
weighty the asserted "public interests" involved, Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S., at 426, 102 S.Ct., at 3171 --
though we assuredly would permit the government to assert a permanent
easement that was a pre-existing limitation upon the landowner's
1029 title. Compare
Scranton v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 57, 45 L.Ed. 126
(1900) (interests of "riparian owner in the submerged lands ...
bordering on a public navigable water" held subject to Government's
navigational servitude), with Kaiser Aetna v. United States, 444 U.S., at
178-180, 100 S.Ct., at 392-393 (imposition of navigational servitude on
marina created and rendered navigable at private expense held to
constitute a taking). We believe similar treatment must be accorded
confiscatory regulations, i.e., regulations that prohibit all economically
beneficial use of land: Any
limitation so severe cannot be newly legislated or decreed (without
compensation), but must inhere in the title itself, in the restrictions
that background principles of the State's law of property and nuisance
already place upon land ownership.
A law or decree with such an effect must, in other words, do no
more than duplicate the result that could have been achieved in the courts
-- by adjacent landowners (or other uniquely affected persons) under the
State's law of private nuisance, or by the State under its complementary
power to abate nuisances that affect the public generally, or otherwise.
FN16. The principal "otherwise" that we have in mind is
litigation absolving the State (or private parties) of liability for the
destruction of "real and personal property, in cases of actual
necessity, to prevent the spreading of a fire" or to forestall other
grave threats to the lives and property of others.
Bowditch v. Boston, 101 U.S. 16, 18-19, 25 L.Ed. 980 (1880);
see United States v. Pacific R., Co., 120 U.S. 227, 238-239, 7 S.Ct.
490, 495-496, 30 L.Ed. 634 (1887).
On this analysis, the
owner of a lake-bed, for example, would not be entitled to compensation
when he is denied the requisite permit to engage in a landfilling
operation that would have the effect of flooding others' land.
Nor the corporate owner of a nuclear generating plant, when it is
directed to remove all improvements from its land upon discovery that the
plant sits astride an earthquake fault.
Such regulatory action may well have the effect of eliminating the
land's only economically productive use, but it does
not proscribe a productive use that was previously permissible 1030 under relevant property and nuisance principles.
The use of these properties for what are now expressly prohibited
purposes was always unlawful, and (subject to other constitutional
limitations) it was open to the State at any point to make the implication
of those background principles of nuisance and property law explicit.
See Michelman, Property, Utility, and Fairness, Comments on the
Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev.
1165, 1239-1241 (1967). In
light of our traditional resort to "existing rules or understandings
that stem from an independent source such as state law" to define the
range of interests that qualify for protection as "property"
under the Fifth and Fourteenth Amendments, Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548
(1972); see, e.g.,
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-1012, 104 S.Ct. 2862,
2877, 81 L.Ed.2d 815 (1984); Hughes
v. Washington, 389 U.S. 290, 295, 88 S.Ct. 438, 441, 19 L.Ed.2d 530 (1967)
(Stewart, J., concurring), this recognition that the Takings Clause does
not require compensation when an owner is barred from putting land to a
use that is proscribed by those "existing rules or
understandings" is surely unexceptional.
When, however, a regulation that declares
"off‑limits" all economically productive or beneficial
uses of land goes beyond what the relevant background principles would
dictate, compensation must be paid to sustain it. [FN17]
FN17. Of course, the State may elect to rescind its regulation and
thereby avoid having to pay compensation for a permanent deprivation. See
First English Evangelical Lutheran Church, 482 U.S., at 321, 107 S.Ct., at
2389. But "where
the [regulation has] already worked a taking of all use of property, no
subsequent action by the government can relieve it of the duty to provide
compensation for the period during which the taking was effective."
taking" inquiry we require today will ordinarily entail (as the
application of state nuisance law ordinarily entails) analysis of, among
other things, the degree of harm to public lands and resources, or
adjacent private property, 1031
posed by the claimant's proposed activities, see, e.g., Restatement
(Second) of Torts §§ 826, 827, the social value of the claimant's
activities and their suitability to the locality in question, see, e.g.,
id., §§ 828(a) and (b), 831, and the relative ease with which the
alleged harm can be avoided through measures taken by the claimant and the
government (or adjacent private landowners) alike, see, e.g., id., §§
827(e), 828(c), 830. The
fact that a particular use has long been engaged in by similarly situated
owners ordinarily imports a lack of any common-law prohibition (though
changed circumstances or new knowledge may make what was previously
permissible no longer so, see id., § 827, Comment g.
So also does the fact that other landowners, similarly situated,
are permitted to continue the use denied to the claimant.
It seems unlikely that
common-law principles would have prevented the erection of any habitable
or productive improvements on petitioner's land;
they rarely support prohibition of the "essential use" of
land, Curtin v. Benson, 222 U.S. 78, 86, 32 S.Ct. 31, 33, 56 L.Ed. 102
(1911). The question,
however, is one of state law to be dealt with on remand.
We emphasize that to win its case South Carolina must do more than
proffer the legislature's declaration that the uses Lucas desires are
inconsistent with the public interest, or the conclusory assertion that
they violate a common-law maxim such as sic utere tuo ut alienum non
laedas. As we have
said, a "State, by ipse dixit, may not transform private property
into public property without compensation...." Webb's Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 452, 66
L.Ed.2d 358 (1980). Instead, as it would be required to do if it sought to
restrain Lucas in a common-law action for public nuisance, South Carolina
must identify background principles of nuisance and property law that
prohibit the uses he now intends in the circumstances in which the
property is presently found. Only
on this showing can 1032 the
State fairly claim that, in proscribing all such beneficial uses, the
Beachfront Management Act is taking nothing. [FN18]
FN18. Justice BLACKMUN decries our reliance on background nuisance
principles at least in part because he believes those principles to be as
manipulable as we find the "harm prevention"/"benefit
conferral" dichotomy, see post, at 2914.
There is no doubt some leeway in a court's interpretation of what
existing state law permits -- but not remotely as much, we think, as in a
legislative crafting of the reasons for its confiscatory regulation.
We stress that an affirmative decree eliminating all economically
beneficial uses may be defended only if an objectively reasonable
application of relevant precedents would exclude those beneficial uses in
the circumstances in which the land is presently found.
The judgment is
reversed, and the case is remanded for proceedings not inconsistent with
concurring in the judgment.
The case comes to the
Court in an unusual posture, as all my colleagues observe.
Ante, at 2890; post, at 2906 (BLACKMUN, J., dissenting);
post, at 2917 (STEVENS, J., dissenting);
post, at 2925 (statement of SOUTER, J.). After the suit was
initiated but before it reached us, South Carolina amended its Beachfront
Management Act to authorize the issuance of special permits at variance
with the Act's general limitations.
See S.C.Code Ann. § 48-39-290(D)(1) (Supp.1991).
Petitioner has not applied for a special permit but may still do
so. The availability of this alternative, if it can be
invoked, may dispose of petitioner's claim of a permanent taking. As I read the Court's opinion, it does not decide the
permanent taking claim, but neither does it foreclose the Supreme Court of
South Carolina from considering the claim or requiring petitioner to
pursue an administrative alternative not previously available.
The potential for
future relief does not control our disposition, because whatever may occur
in the future cannot undo 1033
what has occurred in the past.
The Beachfront Management Act was enacted in 1988.
S.C.Code Ann. § 48-39-250 et seq. (Supp.1990). It may have deprived petitioner of the use of his land
in an interim period. § 48-39-290(A).
If this deprivation
amounts to a taking, its limited duration will not bar constitutional
relief. It is well established that temporary takings are as protected by
the Constitution as are permanent ones.
First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 318, 107 S.Ct. 2378, 2387, 96 L.Ed.2d 250
The issues presented
in the case are ready for our decision.
The Supreme Court of South Carolina decided the case on
constitutional grounds, and its rulings are now before us.
There exists no jurisdictional bar to our disposition, and
prudential considerations ought not to militate against it. The State
cannot complain of the manner in which the issues arose.
Any uncertainty in this regard is attributable to the State, as a
consequence of its amendment to the Beachfront Management Act.
If the Takings Clause is to protect against temporary deprivations,
as well as permanent ones, its enforcement must not be frustrated by a
shifting background of state law.
Although we establish
a framework for remand, moreover, we do not decide the ultimate question
whether a temporary taking has occurred in this case.
The facts necessary to the determination have not been developed in
the record. Among the matters to be considered on remand must be whether
petitioner had the intent and capacity to develop the property and failed
to do so in the interim period because the State prevented him. Any failure by petitioner to comply with relevant
administrative requirements will be part of that analysis.
The South Carolina
Court of Common Pleas found that petitioner's real property has been
rendered valueless by the State's regulation.
App. to Pet. for Cert. 37.
The finding appears to presume that the property has no significant
market 1034 value or resale
potential. This is a
curious finding, and I share the reservations of some of my colleagues
about a finding that a beach-front lot loses all value because of a
development restriction. Post, at 2908 (BLACKMUN, J., dissenting);
post, at 2919, n. 3 (STEVENS, J., dissenting);
post, at 2925 (statement of SOUTER, J.).
While the Supreme Court of South Carolina on remand need not
consider the case subject to this constraint, we must accept the finding
as entered below. See
Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85
L.Ed.2d 791 (1985). Accepting the finding as entered, it follows that
petitioner is entitled to invoke the line of cases discussing regulations
that deprive real property of all economic value.
See Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980).
The finding of no
value must be considered under the Takings Clause by reference to the
owner's reasonable, investment-backed expectations.
Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383,
390, 62 L.Ed.2d 332 (1979); Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct.
2646, 2659, 57 L.Ed.2d 631 (1978); see
also W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed.
1298 (1935). The
Takings Clause, while conferring substantial protection on property
owners, does not eliminate the police power of the State to enact
limitations on the use of their property.
Mugler v. Kansas, 123 U.S. 623, 669, 8 S.Ct. 273, 301, 31 L.Ed. 205
(1887). The rights
conferred by the Takings Clause and the police power of the State may
coexist without conflict. Property
is bought and sold, investments are made, subject to the State's power to
regulate. Where a
taking is alleged from regulations which deprive the property of all
value, the test must be whether the deprivation is contrary to reasonable,
There is an inherent
tendency towards circularity in this synthesis, of course;
for if the owner's reasonable expectations are shaped by what
courts allow as a proper exercise of governmental authority, property
tends to become what courts say it is. Some circularity must be tolerated in these matters,
however, as it is in other spheres.
E.g., Katz v. *1035
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Fourth
Amendment protections defined by reasonable expectations of privacy).
The definition, moreover, is not circular in its entirety.
The expectations protected by the Constitution are based on
objective rules and customs that can be understood as reasonable by all
In my view, reasonable
expectations must be understood in light of the whole of our legal
tradition. The common
law of nuisance is too narrow a confine for the exercise of regulatory
power in a complex and interdependent society. Goldblatt v. Hempstead, 369
U.S. 590, 593, 82 S.Ct. 987, 989, 8 L.Ed.2d 130 (1962).
The State should not be prevented from enacting new regulatory
initiatives in response to changing conditions, and courts must consider
all reasonable expectations whatever their source.
The Takings Clause does not require a static body of state property
law; it protects private
expectations to ensure private investment.
I agree with the Court that nuisance prevention accords with the
most common expectations of property owners who face regulation, but I do
not believe this can be the sole source of state authority to impose
severe restrictions. Coastal
property may present such unique concerns for a fragile land system that
the State can go further in regulating its development and use than the
common law of nuisance might otherwise permit.
The Supreme Court of
South Carolina erred, in my view, by reciting the general purposes for
which the state regulations were enacted without a determination that they
were in accord with the owner's reasonable expectations and therefore
sufficient to support a severe restriction on specific parcels of
property. See 304 S.C. 376, 383, 404 S.E.2d 895, 899 (1991).
The promotion of tourism, for instance, ought not to suffice to
deprive specific property of all value without a corresponding duty to
compensate. Furthermore, the
means, as well as the ends, of regulation must accord with the owner's
reasonable expectations. Here,
the State did not act until after the property had been zoned for
individual 1036 lot development
and most other parcels had been improved, throwing the whole burden of the
regulation on the remaining lots.
This too must be measured in the balance.
See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct.
158, 160, 67 L.Ed. 322 (1922).
observations, I concur in the judgment of the Court.
Today the Court
launches a missile to kill a mouse.
The State of South
Carolina prohibited petitioner Lucas from building a permanent structure
on his property from 1988 to 1990.
Relying on an unreviewed (and implausible) state trial court
finding that this restriction left Lucas' property valueless, this Court
granted review to determine whether compensation must be paid in cases
where the State prohibits all economic use of real estate.
According to the Court, such an occasion never has arisen in any of
our prior cases, and the Court imagines that it will arise
"relatively rarely" or only in "extraordinary
certainly it did not happen in this case.
Nonetheless, the Court
presses on to decide the issue, and as it does, it ignores its
jurisdictional limits, remakes its traditional rules of review, and
creates simultaneously a new categorical rule and an exception (neither of
which is rooted in our prior case law, common law, or common sense).
I protest not only the Court's decision, but each step taken to
reach it. More
fundamentally, I question the Court's wisdom in issuing sweeping new rules
to decide such a narrow case. Surely,
as Justice KENNEDY demonstrates, the Court could have reached the result
it wanted without inflicting this damage upon our Takings Clause
My fear is that the
Court's new policies will spread beyond the narrow confines of the present
case. For that reason,
I, like the Court, will give far greater attention to this case than its
narrow scope suggests -- not because I can intercept
1037 the Court's missile, or save the targeted mouse, but because I
hope perhaps to limit the collateral damage.
In 1972 Congress
passed the Coastal Zone Management Act.
16 U.S.C. § 1451 et seq.
The Act was designed to provide States with money and incentives to
carry out Congress' goal of protecting the public from shoreline erosion
and coastal hazards. In
the 1980 amendments to the Act, Congress directed States to enhance their
coastal programs by "[p]reventing or significantly reducing threats
to life and the destruction of property by eliminating development and
redevelopment in high-hazard areas."
[FN1] 16 U.S.C. §
1456b(a)(2) (1988 ed., Supp. II).
FN1. The country has come to recognize that uncontrolled beachfront
development can cause serious damage to life and property.
See Brief for Sierra Club et al. as Amici Curiae 2-5.
Hurricane Hugo's September 1989
attack upon South Carolina's coastline, for example, caused 29
deaths and approximately $6 billion in property damage, much of it the
result of uncontrolled beachfront development.
See Zalkin, Shifting Sands and Shifting Doctrines:
The Supreme Court's Changing Takings Doctrine and South Carolina's
Coastal Zone Statute, 79 Calif.L.Rev. 205, 212-213 (1991).
The beachfront buildings are not only themselves destroyed in such
a storm, "but they are often driven, like battering rams, into
adjacent inland homes." Ibid.
Moreover, the development often destroys the natural sand dune
barriers that provide storm breaks. Ibid.
South Carolina began implementing the congressional directive
by enacting the South Carolina Coastal Zone Management Act of 1977.
Under the 1977 Act, any construction activity in what was
designated the "critical area" required a permit from the South
Carolina Coastal Council (Council), and the construction of any habitable
structure was prohibited. The
1977 critical area was relatively narrow.
This effort did not
stop the loss of shoreline. In
October 1986, the Council appointed a "Blue Ribbon Committee on
Beachfront Management" to investigate beach erosion and 1038 propose possible solutions.
In March 1987, the Committee found that South Carolina's beaches
were "critically eroding," and proposed land-use restrictions.
Report of the South Carolina Blue Ribbon Committee on Beachfront
Management i, 6-10 (Mar. 1987).
In response, South Carolina enacted the Beachfront Management Act
on July 1, 1988. S.C.Code
Ann. § 48-39-250 et seq. (Supp.1990). The 1988 Act did not change the uses permitted within
the designated critical areas.
Rather, it enlarged those areas to encompass the distance from the
mean high watermark to a setback line established on the basis of
"the best scientific and historical data" available. [FN2]
S.C.Code Ann. § 48-39-280 (Supp.1991).
FN2. The setback line was determined by calculating the distance
landward from the crest of an ideal oceanfront sand dune which is 40 times
the annual erosion rate. S.C.Code
Ann. § 48-39-280 (Supp.1991).
Petitioner Lucas is a
contractor, manager, and part owner of the Wild Dune development on the
Isle of Palms. He has
lived there since 1978. In
December 1986, he purchased two of the last four pieces of vacant property
in the development. [FN3] The
area is notoriously unstable. In
roughly half of the last 40 years, all or part of petitioner's property
was part of the beach or flooded twice daily by the ebb and flow of the
tide. Tr. 84. Between
1957 and 1963, petitioner's property was under water.
Id., at 79, 81-82. Between 1963 and 1973 the shoreline was 100 to 150 feet
onto petitioner's property. Ibid.
In 1973 the first line of stable vegetation was about halfway
through the property. Id., at
80. Between 1981 and
1983, the Isle of Palms issued 12 emergency orders for 1039 sandbagging to protect property in the Wild Dune development.
Id., at 99. Determining
that local habitable structures were in imminent danger of collapse, the
Council issued permits for two rock revetments to protect condominium
developments near petitioner's property from erosion;
one of the revetments extends more than halfway onto one of his
lots. Id., at 102.
FN3. The properties were sold frequently at rapidly escalating
prices before Lucas purchased them.
Lot 22 was first sold in 1979 for $96,660, sold in 1984 for
$187,500, then in 1985 for $260,000, and, finally, to Lucas in 1986 for
$475,000. He estimated
its worth in 1991 at $650,000. Lot 24 had a similar past.
The record does not indicate who purchased the properties prior to
Lucas, or why none of the purchasers held on to the lots and built on
them. Tr. 44-46.
The South Carolina
Supreme Court found that the Beachfront Management Act did not take
petitioner's property without compensation.
The decision rested on two premises that until today were
unassailable -- that the State has the power to prevent any use of
property it finds to be harmful to its citizens, and that a state statute
is entitled to a presumption of constitutionality.
Management Act includes a finding by the South Carolina General Assembly
that the beach/dune system serves the purpose of "protect[ing] life
and property by serving as a storm barrier which dissipates wave energy
and contributes to shoreline stability in an economical and effective
manner." S.C.Code Ann.
§ 48-39-250(1)(a) (Supp.1990).
The General Assembly also found that "development unwisely has
been sited too close to the [beach/dune] system.
This type of development has jeopardized the stability of the
beach/dune system, accelerated erosion, and endangered adjacent
property." § 48-39-250(4); see
also § 48-39-250(6) (discussing the need to "afford the beach/dune
system space to accrete and erode").
If the state
legislature is correct that the prohibition on building in front of the
setback line prevents serious harm, then, under this Court's prior cases,
the Act is constitutional. "Long
ago it was recognized that all property in this country is held under the
implied obligation that the owner's use of it shall not be injurious to
the community, and the Takings Clause did not transform that principle to
one that requires compensation whenever the State asserts its power to
enforce 1040 it."
Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491-492,
107 S.Ct. 1232, 1245, 94 L.Ed.2d 472 (1987) (internal quotation marks
omitted); see also id., at
488-489, and n. 18, 107 S.Ct., at 1244, n. 18. The Court consistently has upheld regulations imposed
to arrest a significant threat to the common welfare, whatever their
economic effect on the owner. See,
e.g., Goldblatt v. Hempstead, 369 U.S. 590, 592-593, 82 S.Ct. 987, 989, 8
L.Ed.2d 130 (1962); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct.
114, 71 L.Ed. 303 (1926); Gorieb
v. Fox, 274 U.S. 603, 608, 47 S.Ct. 675, 677, 71 L.Ed. 1228 (1927);
Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887).
challenged the legislature's findings that a building ban was necessary to
protect property and life. Nor
did he contend that the threatened harm was not sufficiently serious to
make building a house in a particular location a "harmful" use,
that the legislature had not made sufficient findings, or that the
legislature was motivated by anything other than a desire to minimize
damage to coastal areas. Indeed,
petitioner objected at trial that evidence as to the purposes of the
setback requirement was irrelevant.
Tr. 68. The
South Carolina Supreme Court accordingly understood petitioner not to
contest the State's position that "discouraging new construction in
close proximity to the beach/dune area is necessary to prevent a great
public harm," 304 S.C. 376, 383, 404 S.E.2d 895, 898 (1991), and
"to prevent serious injury to the community."
Id., at 387, 404 S.E.2d, at 901.
The court considered itself "bound by these uncontested
legislative findings ... [in the absence of] any attack whatsoever on the
statutory scheme." Id.,
at 383, 404 S.E.2d, at 898.
Nothing in the record
undermines the General Assembly's assessment that prohibitions on building
in front of the setback line are necessary to protect people and property
from storms, high tides, and beach erosion.
Because that legislative determination cannot be disregarded in the
absence of such evidence, see, e.g., Euclid, 272 U.S., at 388, 47 S.Ct.,
at 118; O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S.
251, 257-258, 51 S.Ct. 130, 132, 75 L.Ed. 324 (1931) (Brandeis, J.), and
because its determination 1041
of harm to life and property from building is sufficient to prohibit that
use under this Court's cases, the South Carolina Supreme Court correctly
found no taking.
My disagreement with
the Court begins with its decision to review this case. This Court has held consistently that a land-use challenge is
not ripe for review until there is a final decision about what uses of the
property will be permitted. The
ripeness requirement is not simply a gesture of good will to land-use
planners. In the
absence of "a final and authoritative determination of the type and
intensity of development legally permitted on the subject property,"
MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct.
2561, 2566, 91 L.Ed.2d 285 (1986), and the utilization of
state procedures for just compensation, there is no final
judgment, and in the absence of a final judgment there is no jurisdiction,
see San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 633, 101
S.Ct. 1287, 1294, 67 L.Ed.2d 551 (1981);
Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141,
65 L.Ed.2d 106 (1980).
This rule is
"compelled by the very nature of the inquiry required by the Just
Compensation Clause," because the factors applied in deciding a
takings claim "simply cannot be evaluated until the administrative
agency has arrived at a final, definitive position regarding how it will
apply the regulations at issue to the particular land in question."
Williamson County Regional Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 190, 191, 105 S.Ct. 3108, 3118, 3119, 87
L.Ed.2d 126 (1985). See
also MacDonald, Sommer & Frates, 477 U.S., at 348, 106 S.Ct., at 2566
("A court cannot determine whether a regulation has gone 'too far'
unless it knows how far the regulation goes") (citation omitted).
The Court admits that
the 1990 amendments to the Beachfront Management Act allowing special
permits preclude Lucas from asserting that his property has been
permanently taken. See
ante, at 2890-2891. The
Court agrees that such a claim would not be ripe because there has been no
final decision by respondent on what uses will be permitted.
1042 The Court, however, will not be denied:
It determines that petitioner's "temporary takings" claim
for the period from July 1, 1988, to June 25, 1990, is ripe.
But this claim also is not justiciable. [FN4]
FN4. The Court's reliance, ante, at 2892, on Esposito v. South
Carolina Coastal Council, 939 F.2d 165, 168 (CA4 1991), cert. denied, 505
U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992), in support of its
decision to consider Lucas' temporary takings claim ripe is misplaced.
In Esposito the plaintiffs brought a facial challenge to the mere
enactment of the Act. Here,
of course, Lucas has brought an as-applied challenge. See Brief for
Petitioner 16. Facial
challenges are ripe when the Act is passed;
applied challenges require a final decision on the Act's
application to the property in question.
From the very
beginning of this litigation, respondent has argued that the courts
jurisdiction in this matter because the Plaintiff has sought no
authorization from Council for use of his property, has not challenged the
location of the baseline or setback line as alleged in the Complaint and
because no final agency decision has been rendered concerning use of his
property or location of said baseline or setback line."
Tr. 10 (answer, as amended).
Although the Council's plea has been ignored by every court, it is
Under the Beachfront Management Act, petitioner was entitled
to challenge the setback line or the baseline or erosion rate applied to
his property in formal administrative, followed by judicial, proceedings.
S.C.Code Ann. § 48-39-280(E) (Supp.1991).
Because Lucas failed to pursue this administrative remedy, the
Council never finally decided whether Lucas' particular piece of property
was correctly categorized as a critical area in which building would not
be permitted. This is all the more crucial because Lucas argued
strenuously in the trial court that his land was perfectly safe to build
on, and that his company had studies to prove it.
Tr. 20, 25, 36. If
he was correct, the Council's 1043
final decision would have been to alter the setback line, eliminating the
construction ban on Lucas' property.
That petitioner's property fell within the critical area as
initially interpreted by the Council does not excuse petitioner's failure
to challenge the Act's application to his property in the administrative
process. The claim is
not ripe until petitioner seeks a variance from that status.
"[W]e have made it quite clear that the mere assertion of
regulatory jurisdiction by a governmental body does not constitute a
regulatory taking." United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126, 106 S.Ct. 455,
459, 88 L.Ed.2d 419 (1985). See
also Williamson County, 473 U.S., at 188, 105 S.Ct., at 3117 (claim not
ripe because respondent did not seek variances that would have allowed it
to develop the property, notwithstanding the commission's finding that the
plan did not comply with the zoning ordinance and subdivision
FN5. Even more baffling,
given its decision, just a few days ago, in Lujan v. Defenders of
Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Court
decides petitioner has demonstrated injury in fact.
In his complaint, petitioner made no allegations that he had any
definite plans for using his property.
App. to Pet. for Cert. 153-156. At trial, Lucas testified that he
had house plans drawn up, but that he was "in no hurry" to build
"because the lot was appreciating in value."
Tr. 28-29. The
trial court made no findings of fact that Lucas had any plans to use the
property from 1988 to 1990. "
'[S]ome day' intentions -- without any description of concrete
plans, or indeed even any specification of when the some day will be -- do
not support a finding of the 'actual or imminent' injury that our cases
require." 504 U.S., at
564, 112 S.Ct., at 2138. The
Court circumvents Defenders of Wildlife by deciding to resolve this case
as if it arrived on the pleadings alone.
But it did not. Lucas
had a full trial on his claim for " 'damages for the temporary taking
of his property' from the date of the 1988 Act's 'passage to such time as
this matter is finally resolved,' " ante, at 2892, n. 3, quoting the
complaint, and failed to demonstrate any immediate concrete plans to build
if I agreed with the Court that there were no jurisdictional barriers to
deciding this case, I still would not try to decide it. The Court creates its new takings jurisprudence based
on the trial court's finding that the property
1044 had lost all economic value. [FN6]
This finding is almost certainly erroneous. Petitioner still can enjoy other attributes of
ownership, such as the right to exclude others, "one of the most
essential sticks in the bundle of rights that are commonly characterized
as property." Kaiser Aetna v. United States, 444 U.S. 164, 176, 100
S.Ct. 383, 391, 62 L.Ed.2d 332 (1979).
Petitioner can picnic, swim, camp in a tent, or live on the
property in a movable trailer.
State courts frequently have recognized that land has economic
value where the only residual economic uses are recreation or camping.
See, e.g., Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d
891 (1972) cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689
(1973); Turner v. County of
Del Norte, 24 Cal.App.3d 311, 101 Cal.Rptr. 93 (1972);
Hall v. Board of Environmental Protection, 528 A.2d 453 (Me.1987).
Petitioner also retains the right to alienate the land, which would
have value for neighbors and for those prepared to enjoy proximity to the
ocean without a house.
contested the findings of fact of the trial court in the South Carolina
Supreme Court, but that court did not resolve the issue.
This Court's decision to assume for its purposes that petitioner
had been denied all economic use of his land does not, of course, dispose
of the issue on remand.
Yet the trial court, apparently believing that "less
value" and "valueless"
could be used interchangeably, found the property "valueless."
The court accepted no evidence from the State on the property's
value without a home, and petitioner's appraiser testified that he never
had considered what the value would be absent a residence.
Tr. 54-55. The appraiser's value was based on the fact that the
"highest and best use of these lots ... [is] luxury single family
detached dwellings." Id.,
at 48. The trial court
appeared to believe that the property could be considered
"valueless" if it was not available for its most profitable use.
Absent that erroneous assumption, see Goldblatt, 369 U.S., at 592,
82 S.Ct., at 989, I find no evidence in the record supporting the trial
court's conclusion that the damage to the lots by virtue of the
restrictions 1045 was "total."
Record 128 (findings of fact).
I agree with the Court, ante, at 2896, n. 9, that it has the power
to decide a case that turns on an erroneous finding, but I question the
wisdom of deciding an issue based on a factual premise that does not exist
in this case, and in the judgment of the Court will exist in the future
only in "extraordinary circumstance[s]," ante, at 2894.
the Court was eager to decide this case. [FN7]
But eagerness, in the absence of proper jurisdiction, must -- and
in this case should have been -- met with restraint.
The Court overlooks the lack of a ripe and justiciable claim
apparently out of concern that in the absence of its intervention
Lucas will be unable to obtain further adjudication of his temporary
takings claim. The
Court chastises respondent for arguing that Lucas' temporary takings claim
is premature because it failed "so much as [to] commen[t]" upon
the effect of the South Carolina Supreme Court's decision on petitioner's
ability to obtain relief for the 2-year period, and it frets that Lucas
would "be unable (absent our intervention now) to obtain further
state-court adjudication with respect to the 1988-1990 period."
Ante, at 2891. Whatever
the explanation for the Court's intense interest in Lucas' plight when
ordinarily we are more cautious in granting discretionary review, the
concern would have been more prudently expressed by vacating the judgment
below and remanding for further consideration in light of the 1990
amendments. At that point, petitioner could have brought a
temporary takings claim in the state courts.
The Court's willingness to dispense with precedent in its
haste to reach a result is not limited to its initial jurisdictional
decision. The Court
also alters the long-settled rules of review.
The South Carolina Supreme Court's decision to defer to
legislative judgments in the absence of a challenge from petitioner
comports with one of this Court's oldest maxims:
"[T]he existence of facts supporting the legislative judgment
is to be presumed." United
States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82
L.Ed. 1234 (1938). Indeed,
we have said the legislature's judgment is "well-nigh
conclusive." Berman v.
Parker,  348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954).
See also Sweet v. Rechel, 159 U.S. 380, 392, 16 S.Ct. 43, 45-46, 40
L.Ed. 188 (1895); Euclid, 272
U.S., at 388, 47 S.Ct., at 118 ("If the validity of the legislative
classification for zoning purposes be fairly debatable, the legislative
judgment must be allowed to control").
Accordingly, this Court always has required plaintiffs
challenging the constitutionality of an ordinance to provide "some
factual foundation of record" that contravenes the legislative
findings. O'Gorman &
Young, 282 U.S., at 258, 51 S.Ct., at 132.
In the absence of such proof, "the presumption of
constitutionality must prevail."
Id., at 257, 51 S.Ct., at 132.
We only recently have reaffirmed that claimants have the burden of
showing a state law constitutes a taking.
See Keystone Bituminous Coal, 480 U.S., at 485, 107 S.Ct., at 1242.
See also Goldblatt, 369 U.S., at 594, 82 S.Ct., at 990 (citing
"the usual presumption of constitutionality" that applies to
statutes attacked as takings).
Rather than invoking these traditional rules, the Court
decides the State has the burden to convince the courts that its
legislative judgments are correct. Despite Lucas' complete failure to
contest the legislature's findings of serious harm to life and property if
a permanent structure is built, the Court decides that the legislative
findings are not sufficient to justify the use prohibition.
Instead, the Court "emphasize[s]" the State must do more
than merely proffer its legislative judgments to avoid invalidating its
law. Ante, at 2901. In
this case, apparently, the State now has the burden of showing the
regulation is not a taking. The Court offers no justification for its sudden
hostility toward state legislators, and I doubt that it could.
The Court does not reject the South Carolina Supreme Court's
decision simply on the basis of its disbelief and distrust of the
legislature's findings. It
also takes the opportunity to create a new scheme for regulations that
eliminate all economic value. From
now on, there is a categorical rule finding these regulations to be a
taking unless the use they 1047
prohibit is a background common-law nuisance or property principle. See
ante, at 2899-2901.
I first question the Court's rationale in creating a category
that obviates a "case-specific inquiry into the public interest
advanced," ante, at 2893, if all economic value has been lost. If one fact about the Court's takings jurisprudence can
be stated without contradiction, it is that "the particular
circumstances of each case" determine whether a specific restriction
will be rendered invalid by the government's failure to pay compensation.
United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78
S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).
This is so because although we have articulated certain factors to
be considered, including the economic impact on the property owner, the
ultimate conclusion "necessarily requires a weighing of private and
public interests." Agins,
447 U.S., at 261, 100 S.Ct., at 2141. When the government regulation prevents the owner from
any economically valuable use of his property, the private interest is
unquestionably substantial, but we have never before held that no public
interest can outweigh it. Instead
the Court's prior decisions "uniformly reject the proposition that
diminution in property value, standing alone, can establish a 'taking.'
" Penn Central Transp.
Co. v. New York City, 438 U.S. 104, 131, 98 S.Ct. 2646, 2663, 57 L.Ed.2d
This Court repeatedly has recognized the ability of
government, in certain circumstances, to regulate property without
compensation no matter how adverse the financial effect on the owner may
be. More than a
century ago, the Court explicitly upheld the right of States to prohibit
uses of property injurious to public health, safety, or welfare without
paying compensation: "A
prohibition simply upon the use of property for purposes that are
declared, by valid legislation, to be injurious to the health, morals, or
safety of the community, cannot, in any just sense, be deemed a taking or
an appropriation of property." Mugler
v. Kansas, 123  U.S., at
668-669, 8 S.Ct., at 301. On
this basis, the Court upheld an ordinance effectively prohibiting
operation of a previously lawful brewery, although the
"establishments will become of no value as property."
Id., at 664, 8 S.Ct., at 298;
see also id., at 668, 8 S.Ct., at 300.
Mugler was only the beginning in a long line of cases. [FN8]
In Powell v.
Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253 (1888), the Court
upheld legislation prohibiting the manufacture of oleomargarine, despite
the owner's allegation that "if prevented from continuing it, the
value of his property employed therein would be entirely lost and he be
deprived of the means of livelihood."
Id., at 682, 8 S.Ct., at 994.
In Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915), the Court upheld an ordinance prohibiting a brickyard, although
the owner had made excavations on the land that prevented it from being
utilized for any purpose but a brickyard.
Id., at 405, 36 S.Ct., at 143.
In Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568
(1928), the Court held that the Fifth Amendment did not require Virginia
to pay compensation to the owner of cedar trees ordered destroyed to
prevent a disease from spreading to nearby apple orchards.
The "preferment of [the public interest] over the property
interest of the individual, to the extent even of its destruction, is one
of the distinguishing characteristics of every exercise of the police
power which affects property." Id.,
at 280, 48 S.Ct., at 247. Again,
in Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67
L.Ed. 773 (1923), the Court stated that "destruction of, or injury
to, property is frequently accomplished without
a 'taking' in the constitutional sense."
Id., at 508, 43 S.Ct., at 437.
FN8. Prior to Mugler, the Court had held that owners whose real
property is wholly destroyed to prevent the spread of a fire are not
entitled to compensation. Bowditch
v. Boston, 101 U.S. 16, 18-19, 25 L.Ed. 980 (1880).
And the Court recognized in the License Cases, 5 How. 504, 589, 12
L.Ed. 256 (1847) (opinion of McLean, J.), that "[t]he acknowledged
police power of a State extends often to the destruction of
More recently, in
Goldblatt, the Court upheld a town regulation that barred continued
operation of an existing sand and gravel operation in order to protect
public safety. 369  U.S., at 596, 82 S.Ct., at 991. "Although a comparison
of values before and after is relevant," the Court stated, "it
is by no means conclusive." [FN9]
Id., at 594, 82 S.Ct., at 990.
In 1978, the Court declared that "in instances in which a
state tribunal reasonably concluded that 'the health, safety, morals, or
general welfare' would be promoted by prohibiting particular contemplated
uses of land, this Court has upheld land-use regulation that destroyed ...
recognized real property interests."
Penn Central Transp. Co., 438 U.S., at 125, 98 S.Ct., at 2659.
In First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the
owner alleged that a floodplain ordinance had deprived it of "all
use" of the property. Id.,
at 312, 107 S.Ct., at 2384. The
Court remanded the case for consideration whether, even if the ordinance
denied the owner all use, it could be justified as a safety measure.
[FN10] Id., at 313, 107 S.Ct.,
at 2385. And in
Keystone Bituminous Coal, the Court summarized over 100 years of
precedent: "[T]he Court
has repeatedly upheld regulations that destroy or adversely affect real
property interests." [FN11]
480 U.S., at 489, n. 18, 107 S.Ct., at 1244, n. 18.
FN9. That same year, an appeal came to the Court asking "[w]hether
zoning ordinances which altogether destroy the worth of valuable land by
prohibiting the only economic use of which it is capable effect a taking
of real property without compensation."
Juris. Statement, O.T.1962, No. 307, p. 5.
The Court dismissed the appeal for lack of a substantial federal
question. Consolidated Rock
Products Co. v. Los Angeles, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d
342, appeal dism'd, 371 U.S. 36, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962).
FN10. On remand, the California court found no taking in part
because the zoning regulation "involves this highest of public
interests -- the prevention of death and injury."
First Lutheran Church v. Los Angeles, 210 Cal.App.3d 1353, 1370,
258 Cal.Rptr. 893, 904 (1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 866,
107 L.Ed.2d 950 (1990).
FN11. The Court's suggestion that Agins v. City of Tiburon, 447
U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), a unanimous opinion,
created a new per se rule, only now discovered, is unpersuasive.
In Agins, the Court stated that "no precise rule determines
when property has
been taken" but instead that "the question necessarily requires
a weighing of public and private interest."
Id., at 260-262, 100 S.Ct., at 2141-2142.
The other cases cited by the Court, ante, at 2893, repeat the Agins
sentence, but in no way suggest that the public interest is irrelevant if
total value has been taken. The Court has indicated that proof that a regulation
does not deny an owner economic use of his property is sufficient to
defeat a facial takings challenge.
See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264, 295-297, 101 S.Ct. 2352, 2370-2371, 69 L.Ed.2d 1 (1981). But the conclusion that a regulation is not on its face
a taking because it allows the landowner some economic use of property is
a far cry from the proposition that denial of such use is sufficient to
establish a takings claim regardless of any other consideration.
The Court never has accepted the latter proposition. The Court
relies today on dicta in Agins, Hodel, Nollan v. California Coastal Comm'n,
483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Keystone
Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94
L.Ed.2d 472 (1987), for its new categorical rule.
Ante, at 2893. I
prefer to rely on the directly contrary holdings in cases such as Mugler
v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915), and Hadacheck v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed.
205 (1887), not to mention contrary statements in the very cases on which
the Court relies. See
Agins, 447 U.S., at 260-262, 100 S.Ct., at 2141-2142;
Keystone Bituminous Coal, 480 U.S., at 489, n. 18, 491-492, 107
S.Ct., at 1243-1244, n. 18, 1245-1246.
1050 The Court
recognizes that "our prior opinions have suggested that
'harmful or noxious uses' of property may be proscribed by
government regulation without the requirement of compensation," ante,
at 2897, but seeks to reconcile them with its categorical rule by claiming
that the Court never has upheld a regulation when the owner alleged the
loss of all economic value. Even
if the Court's factual premise were correct, its understanding of the
Court's cases is distorted. In
none of the cases did the Court suggest that the right of a State to
prohibit certain activities without paying compensation
turned on the availability of some residual valuable use. [FN12] Instead,
the cases depended on whether the
1051 government interest was sufficient to prohibit the activity,
given the significant private cost. [FN13]
FN12. Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568
(1928), is an example. In
the course of demonstrating that apple trees are more valuable than red
cedar trees, the Court noted that red cedar has "occasional use and
value as lumber." Id.,
at 279, 48 S.Ct., at 247. But the Court did not discuss whether the timber
owned by the petitioner in that case was commercially salable, and nothing
in the opinion suggests that the State's right to require uncompensated
felling of the trees depended on any such salvage value.
To the contrary, it is clear from its unanimous opinion that the
Schoene Court would have sustained a law requiring the burning of cedar
trees if that had been necessary to protect apple trees in which there was
a public interest: The Court
spoke of preferment of the public interest over the property interest of
the individual, "to the extent even of its destruction."
Id., at 280, 48 S.Ct., at 247.
FN13. The Court seeks to disavow the holdings and reasoning of
Mugler and subsequent cases by explaining that they were the Court's early
efforts to define the scope of the police power. There is language in the earliest takings cases
suggesting that the police power was considered to be the power simply to
prevent harms. Subsequently,
the Court expanded its understanding of what were government's legitimate interests.
But it does not follow that the holding of those early cases --
that harmful and noxious uses of property can be forbidden whatever the
harm to the property owner and without the payment of compensation -- was
repudiated. To the
contrary, as the Court consciously expanded the scope of the police power
beyond preventing harm, it clarified that there was a core of public
interests that overrode any private interest.
See Keystone Bituminous Coal, 480 U.S., at 491, n. 20, 107 S.Ct.,
at 1245, n. 20.
These cases rest on
the principle that the State has full power to prohibit an owner's use of
property if it is harmful to the public.
"[S]ince no individual has a right to use his property so as
to create a nuisance or otherwise harm others, the State has not 'taken'
anything when it asserts its power to enjoin the nuisance-like
Bituminous Coal, 480 U.S., at 491, n. 20, 107 S.Ct., at 1245, n. 20.
It would make no sense under this theory to suggest that an owner
has a constitutionally protected right to harm others, if only he makes
the proper showing of economic loss. [FN14]
See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 418, 43 S.Ct.
158, 161, 67 L.Ed. 322 (1922) (Brandeis, J., dissenting)
("Restriction upon [harmful] use does not become inappropriate as a
means, merely because it deprives the owner of the only use to which the
property can then be profitably put").
FN14. "Indeed, it would be extraordinary to construe the
Constitution to require a government to compensate private landowners
because it denied them 'the right' to use property which cannot be used
without risking injury and death."
First Lutheran Church, 210 Cal.App.3d, at 1366, 258 Cal.Rptr., at
Ultimately even the
Court cannot embrace the full implications of its per se rule:
It eventually agrees that there cannot be a categorical rule for a
taking based on economic value that wholly disregards the public need
asserted. Instead, the
Court decides that it will permit a State to regulate all economic value
only if the State prohibits uses that would not be permitted under
"background principles of nuisance and property law."
[FN15] Ante, at 2901.
FN15. Although it refers to state nuisance and property law, the
Court apparently does not mean just any state nuisance and property law.
Public nuisance was first a common-law creation, see Newark, The
Nuisance, 65 L.Q.Rev. 480, 482 (1949) (attributing development of nuisance
to 1535), but by the 1800's in both the United States and England,
legislatures had the power to define what is a public nuisance, and
particular uses often have been selectively targeted.
See Prosser, Private Action for Public Nuisance, 52 Va.L.Rev. 997,
999-1000 (1966); J. Stephen,
A General View of the Criminal Law of England 105-107 (2d ed. 1890).
The Court's references to "common-law" background
principles, however, indicate that legislative determinations do not
constitute "state nuisance and property law" for the Court.
Until today, the Court
explicitly had rejected the contention that the government's power to act
without paying compensation turns on whether the prohibited activity is a
common-law nuisance. [FN16] The
brewery closed in Mugler itself was not a common-law nuisance, and the
Court specifically stated that it was the role of the legislature to
determine 1053 what measures would be appropriate for the protection of
public health and safety. See 123 U.S., at 661, 8 S.Ct., at 297.
In upholding the state action in Miller, the Court found it
unnecessary to "weigh with nicety the question whether the infected
cedars constitute a nuisance according to common law;
or whether they may be so declared by statute."
276 U.S., at 280, 48 S.Ct., at 248.
See also Goldblatt, 369 U.S., at 593, 82 S.Ct., at 989;
Hadacheck, 239 U.S., at 411, 36 S.Ct., at 146. Instead the Court has relied in the past, as the South
Carolina court has done here, on legislative judgments of what constitutes
a harm. [FN17]
FN16. Also, until today the fact that the regulation prohibited
uses that were lawful at the time the owner purchased did not determine
the constitutional question. The
brewery, the brickyard, the cedar trees, and the gravel pit were all
perfectly legitimate uses prior to the passage of the regulation.
See Mugler v. Kansas, 123 U.S., at 654, 8 S.Ct., at 293;
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915); Miller, 276 U.S., at
272, 48 S.Ct., at 246; Goldblatt
v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).
This Court explicitly acknowledged in Hadacheck that "[a]
vested interest cannot be asserted against [the police power] because of
conditions once obtaining. To so hold would preclude development and fix a
city forever in its primitive conditions."
239 U.S., at 410, 36 S.Ct., at 145 (citation omitted).
FN17. The Court argues that finding no taking when the legislature
prohibits a harmful use, such as the Court did in Mugler and the
South Carolina Supreme Court did in the instant case, would nullify
Pennsylvania Coal. See ante, at 2897.
Justice Holmes, the author of Pennsylvania Coal, joined Miller v.
Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), six years later.
In Miller, the Court adopted the exact approach of the South
Carolina court: It found the
cedar trees harmful, and their destruction not a taking, whether or not
they were a nuisance. Justice
Holmes apparently believed that such an approach did not repudiate his
earlier opinion. Moreover,
this Court already has been over this ground five years ago, and at that
point rejected the assertion that Pennsylvania Coal was inconsistent with
Mugler, Hadacheck, Miller, or the others in the string of "noxious
use" cases, recognizing instead that the nature of the State's action
is critical in takings analysis. Keystone Bituminous Coal, 480 U.S., at
490, 107 S.Ct., at 1244.
The Court rejects the
notion that the State always can prohibit uses it deems a harm to the
public without granting compensation because "the distinction between
'harm-preventing' and 'benefit-conferring' regulation is often in the eye
of the beholder." Ante,
at 2897. Since the
characterization will depend "primarily upon one's evaluation of the
worth of competing uses of real estate," ante, at 2898, the Court
decides a legislative judgment of this kind no longer can provide the
desired "objective, value-free basis" for upholding a
regulation, ante, at 2899. The
Court, however, fails to explain how its proposed common-law alternative
escapes the same trap.
1054 The threshold
inquiry for imposition of the Court's new rule,
"deprivation of all economically valuable use," itself
cannot be determined objectively.
As the Court admits, whether the owner has been deprived of all
economic value of his property will depend on how "property" is
"composition of the denominator in our 'deprivation' fraction,"
ante, at 2894, n. 7, is the dispositive inquiry.
Yet there is no "objective" way to define what that
denominator should be. "We
have long understood that any land-use regulation can be characterized as
the 'total' deprivation of an aptly defined entitlement....
Alternatively, the same regulation can always be characterized as a
mere 'partial' withdrawal from full, unencumbered ownership of the
landholding affected by the regulation...."
Takings, 1987, 88 Colum.L.Rev. 1600, 1614 (1988).
FN18. See also Michelman, Property, Utility, and Fairness, Comments
on the Ethical Foundations of "Just Compensation" Law, 80
Harv.L.Rev. 1165, 1192-1193 (1967); Sax,
Takings and the Police Power, 74 Yale L.J.
36, 60 (1964).
The Court's decision
in Keystone Bituminous Coal illustrates this principle perfectly.
In Keystone, the Court determined that the "support estate"
was "merely a part of the entire bundle of rights possessed by the
owner." 480 U.S., at
501, 107 S.Ct., at 1250. Thus,
the Court concluded that the support estate's destruction merely
eliminated one segment of the total property.
Ibid. The dissent,
however, characterized the support estate as a distinct property interest
that was wholly destroyed. Id.,
at 519, 107 S.Ct., at 1260. The
Court could agree on no "value-free basis" to resolve this
Even more perplexing,
however, is the Court's reliance on common-law principles of nuisance in
its quest for a value-free takings jurisprudence.
In determining what is a nuisance at common law, state courts make
exactly the decision that the Court finds so troubling when made by the
South Carolina General Assembly today:
They determine whether the use is harmful.
Common-law public and private nuisance 1055 law is simply a determination whether a particular use causes
harm. See Prosser,
Private Action for Public Nuisance, 52 Va.L.Rev. 997 (1966)
("Nuisance is a French word which means nothing more than
harm"). There is
nothing magical in the reasoning of judges long dead.
They determined a harm in the same way as state judges and
legislatures do today. If
judges in the 18th and 19th centuries can distinguish a harm from a
benefit, why not judges in the 20th century, and if judges can, why not
simply is no reason to believe that new interpretations of the hoary
common‑law nuisance doctrine will be particularly
"objective" or "value free."
[FN19] Once one
abandons the level of generality of sic utere tuo ut alienum non laedas,
ante, at 2901, one searches in vain, I think, for anything resembling a
principle in the common law of nuisance.
FN19. "There is perhaps no more impenetrable jungle in the
entire law than that which surrounds the word 'nuisance.'
It has meant all things to all people, and has been applied
indiscriminately to everything from an alarming advertisement to a
cockroach baked in a pie."
W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on
The Law of Torts 616 (5th ed. 1984) (footnotes omitted). It is an area of law that "straddles the legal
universe, virtually defies synthesis, and generates case law to suit every
Rodgers, Environmental Law § 2.4, p. 48 (1986) (footnotes omitted).
The Court itself has noted that "nuisance concepts" are
"often vague and indeterminate."
Milwaukee v. Illinois,
451 U.S. 304, 317, 101 S.Ct. 1784, 1792, 68 L.Ed.2d 114 (1981).
Finally, the Court
justifies its new rule that the legislature may not deprive a property
owner of the only economically valuable use of his land, even if the
legislature finds it to be a harmful use, because such action is not part
of the " 'long recognized' " "understandings of our
citizens." Ante, at
2899. These "understandings" permit such regulation only if the
use is a nuisance under the common law.
Any other course is "inconsistent with the historical compact
recorded in the Takings Clause."
Ante, at 2900. It
is not clear from the Court's 1056
opinion where our "historical compact" or "citizens'
understanding" comes from, but it does not appear to be history.
The principle that the
State should compensate individuals for property taken for public use was
not widely established in America at the time of the Revolution.
... inherited ... a concept of property which permitted extensive
regulation of the use of that property for the public benefit --
regulation that could even go so far as to deny all productive use of the
property to the owner if, as Coke himself stated, the regulation 'extends
to the public benefit ... for this is for the public, and every one hath
benefit by it.' " F.
Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81
(1973), quoting The Case of the King's Prerogative in Saltpetre, 12
Co.Rep. 12-13 (1606) (hereinafter Bosselman).
See also Treanor, The Origins and Original Significance of the Just
Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 697, n. 9
FN20. See generally Sax, 74
Yale L.J., at 56-59. "The
evidence certainly seems to indicate that the mere fact that government
activity destroyed existing economic advantages and power did not disturb
[the English theorists who formulated the compensation notion] at
all." Id., at 56. Professor Sax contends that even Blackstone,
"remembered champion of the language of private property," did
not believe that the Compensation Clause was meant to preserve economic
value. Id., at 58-59.
into the 19th century, state governments often felt free to take property
for roads and other public projects without paying compensation to the
owners. [FN21] See M. Horwitz,
The Transformation of American Law, 1780-1860, pp. 63-64 (1977)
(hereinafter Horwitz); Treanor,
94 Yale L.J., at 695. As
one court declared in 1802, citizens "were bound
*1057 to contribute as much of [land], as by the laws of the country,
were deemed necessary for the public convenience."
M'Clenachan v. Curwin, 3 Yeates 362, 373 (Pa.1802).
There was an obvious movement toward establishing the just
compensation principle during the 19th century, but "there continued
to be a strong current in American legal thought that regarded
compensation simply as a 'bounty given ... by the State' out of 'kindness'
and not out of justice." Horwitz
65, quoting Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa.1830).
See also State v. Dawson, 3 Hill 100, 103 (S.C.1836)). [FN22]
FN21. In 1796, the
attorney general of South Carolina responded to property holders' demand
for compensation when the State took their land to build a road by arguing
that "there is not one instance on record, and certainly none within
the memory of the oldest man now living, of any demand being made for
compensation for the soil or freehold of the lands."
Lindsay v. Commissioners, 2 S.C.L. 38, 49 (1796).
Only the Constitutions of Vermont and Massachusetts required that
compensation be paid when private property was taken for public use; and
although eminent domain was mentioned in the Pennsylvania Constitution,
its sole requirement was that property not be taken without the consent of
the legislature. See
Grant, The "Higher Law" Background of the Law of
Eminent Domain, in 2 Selected Essays on Constitutional Law 912, 915-916
(1938). By 1868,
five of the original States still had no just compensation clauses in
their Constitutions. Ibid.
Although, prior to the adoption of the Bill of Rights, America
was replete with land-use regulations describing which activities were
considered noxious and forbidden, see Bender, The Takings Clause:
Principles or Politics?, 34 Buffalo L.Rev. 735, 751 (1985);
L. Friedman, A History of American Law 66-68 (1973), the Fifth
Amendment's Takings Clause originally did not extend to regulations of
property, whatever the effect. [FN23]
See ante, at 2892. Most state courts agreed with this narrow
interpretation of a taking. "Until the end of the nineteenth century
... jurists held that 1058 the
constitution protected possession only, and not value."
Siegel, Understanding the Nineteenth Century Contract Clause:
The Role of the Property‑Privilege Distinction and
"Takings" Clause Jurisprudence, 60 S.Cal.L.Rev. 1, 76 (1986);
Bosselman 106. Even
indirect and consequential injuries to property resulting from regulations
were excluded from the definition of a taking.
See ibid.; Callender
v. Marsh, 1 Pick. 418, 430 (Mass.1823).
FN23. James Madison, author of the Takings Clause, apparently
intended it to apply only to direct, physical takings of property by the
Federal Government. See
Treanor, The Origins and Original Significance of the Just Compensation
Clause of the Fifth Amendment, 94 Yale L.J. 694, 711 (1985).
Professor Sax argues that although "contemporaneous commentary
upon the meaning of the compensation clause is in very short supply,"
74 Yale L.J., at 58, the "few authorities that are available"
indicate that the Clause was "designed to prevent arbitrary
government action," not to protect economic value.
Id., at 58-60.
Even when courts began
to consider that regulation in some situations could constitute a taking,
they continued to uphold bans on particular uses without paying
compensation, notwithstanding the economic impact, under the rationale
that no one can obtain a vested right to injure or endanger the public.
[FN24] In the Coates cases,
for example, the Supreme Court of New York found no taking in New York's
ban on the interment of the dead within the city, although "no other
use can be made of these lands."
Coates v. City of New York, 7 Cow. 585, 592 (N.Y.1827).
See also Brick Presbyterian Church v. City of New York, 5 Cow. 538
(N.Y.1826); Commonwealth v.
Alger, 7 Cush. 53, 59, 104 (Mass.1851);
St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 146,
137 S.W. 929, 942 (1911), appeal dism'd, 231 U.S. 761, 34 S.Ct. 325, 58
L.Ed. 470 (1913). More
recent cases reach the same result.
See Consolidated Rock Products Co. v. Los Angeles, 57 Cal.2d 515,
20 Cal.Rptr. 638, 370 P.2d 342, appeal dism'd, 371 U.S. 36, 83 S.Ct. 145,
9 L.Ed.2d 112 (1962); Nassr
v.  Commonwealth, 394
Mass. 767, 477 N.E.2d 987 (1985); Eno
v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965); Turner v. County of Del
Norte, 24 Cal.App.3d 311, 101 Cal.Rptr. 93 (1972).
FN24. For this reason, the retroactive application of the
regulation to formerly lawful uses was not a controlling distinction in
the past. "Nor can it make any difference that the right is purchased
previous to the passage of the by-law," for "[e]very right, from
an absolute ownership in property, down to a mere easement, is purchased
and holden subject to the restriction, that it shall be so exercised as
not to injure others. Though, at the time, it be remote and inoffensive,
the purchaser is bound to know, at his peril, that it may become
v. City of New York, 7 Cow. 585, 605 (N.Y.1827).
See also Brick Presbyterian Church v. City of New York, 5 Cow. 538,
542 (N.Y.1826); Commonwealth
v. Tewksbury, 11 Metc. 55 (Mass.1846);
State v. Paul, 5 R.I. 185 (1858).
In addition, state
courts historically have been less likely to find that a government action
constitutes a taking when the affected land is undeveloped. According to
the South Carolina court, the power of the legislature to take unimproved
land without providing compensation was sanctioned by "ancient rights
and principles." Lindsay
v. Commissioners, 2 S.C.L. 38, 57 (1796). "Except for Massachusetts,
no colony appears to have paid compensation when it built a state-owned
road across unimproved land. Legislatures
provided compensation only for enclosed or improved land."
Treanor, 94 Yale L.J., at 695 (footnotes omitted).
This rule was followed by some States into the 1800's.
See Horwitz 63-65.
With similar result,
the common agrarian conception of property limited owners to
"natural" uses of their land prior to and during much of the
18th century. See id., at 32. Thus,
for example, the owner could build nothing on his land that would alter
the natural flow of water. See
id., at 44; see also, e.g., Merritt v. Parker, 1 Coxe 460, 463
(N.J.1795). Some more
recent state courts still follow this reasoning.
See, e.g., Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761,
Nor does history
indicate any common-law limit on the State's power to regulate harmful
uses even to the point of destroying all economic value. Nothing in the
discussions in Congress concerning the Takings Clause indicates that the
Clause was limited by the common-law nuisance doctrine.
Common-law courts themselves rejected such an understanding. They regularly recognized that it is "for the
legislature to interpose, and by positive enactment to prohibit a use of
property which would be injurious to the public."
1060 Tewksbury, 11 Metc., at 57. [FN25]
Chief Justice Shaw explained in upholding a regulation prohibiting
construction of wharves, the existence of a taking did not depend on
"whether a certain erection in tide water is a nuisance at common law
or not." Alger, 7 Cush.,
at 104; see also State v.
Paul, 5 R.I. 185, 193 (1858); Commonwealth
v. Parks, 155 Mass. 531, 532, 30 N.E. 174 (1892) (Holmes, J.) ("[T]he
legislature may change the common law as to nuisances, and may move the
line either way, so as to make things nuisances which were not so, or to
make things lawful which were nuisances").
FN25. More recent state-court decisions agree.
See, e.g., Lane v. Mt. Vernon, 38 N.Y.2d 344, 348-349, 379 N.Y.S.2d
798, 800, 342 N.E.2d 571, 573 (1976);
Commonwealth v. Baker, 160 Pa.Super. 640, 641-642, 53 A.2d 829, 830
In short, I find no
clear and accepted "historical compact" or "understanding
of our citizens" justifying the Court's new takings doctrine.
Instead, the Court seems to treat history as a grab bag of
principles, to be adopted where they support the Court's theory, and
ignored where they do not. If
the Court decided that the early common law provides the background
principles for interpreting the Takings Clause, then regulation, as
opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period
provides the background principles, then regulation might be compensable,
but the Court would have to confront the fact that legislatures regularly
determined which uses were prohibited, independent of the common law, and
independent of whether the uses were lawful when the owner purchased.
What makes the Court's analysis unworkable is its attempt to
package the law of two incompatible eras and peddle it as historical fact.
FN26. The Court asserts that all early American experience, prior
to and after passage of the Bill of Rights, and any case law prior to 1897
are "entirely irrelevant" in determining what is "the
historical compact recorded in the Takings Clause."
Ante, at 2900 and n. 15.
Nor apparently are we to find this compact in the early federal
takings cases, which clearly permitted prohibition of harmful uses despite
the alleged loss of all value, whether or not the prohibition was a common-law
nuisance, and whether or not the prohibition occurred subsequent to
the purchase. See supra, at 2910, 2912-2913, and n. 16.
I cannot imagine where the Court finds its "historical
compact," if not in history.
The Court makes
sweeping and, in my view, misguided and unsupported changes in our takings
doctrine. While it
limits these changes to the most narrow subset of government regulation --
those that eliminate all economic value from land -- these changes go far
beyond what is necessary to secure petitioner Lucas' private benefit.
One hopes they do not go beyond the narrow confines the Court
assigns them to today.
Today the Court
restricts one judge-made rule and expands another.
In my opinion it errs on both counts.
Proper application of the doctrine of judicial restraint would
avoid the premature adjudication of an important constitutional question.
Proper respect for our precedents would avoid an illogical
expansion of the concept of "regulatory takings."
As the Court notes,
ante, at 2890-2891, South Carolina's Beachfront Management Act has been
amended to permit some construction of residences seaward of the line that
frustrated petitioner's proposed use of his property. Until he exhausts
his right to apply for a special permit under that amendment, petitioner
is not entitled to an adjudication by this Court of the merits of his
permanent takings claim. MacDonald,
Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 106 S.Ct. 2561,
2567, 91 L.Ed.2d 285 (1986).
It is also not clear
that he has a viable "temporary takings" claim. If we assume that petitioner is now able to build on
the lot, the only injury that he may have suffered is 1062 the delay caused by the temporary existence of the absolute
statutory ban on construction.
We cannot be sure, however, that that delay caused petitioner any
harm because the record does not tell us whether his building plans were
even temporarily frustrated by the enactment of the statute. [FN1]
Thus, on the present record it is entirely possible that petitioner
has suffered no injury in fact
even if the state statute was unconstitutional when he filed this lawsuit.
FN1. In this regard, it is noteworthy that petitioner acquired the
lot about 18 months before the statute was passed; there is no evidence that he ever sought a building permit
from the local authorities.
It is true, as the
Court notes, that the argument against deciding the constitutional issue
in this case rests on prudential considerations rather than a want of
jurisdiction. I think
it equally clear, however, that a Court less eager to decide the merits
would follow the wise counsel of Justice Brandeis in his deservedly famous
concurring opinion in Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466,
480, 80 L.Ed. 688 (1936). As
he explained, the Court has developed "for its own governance in the
cases confessedly within its jurisdiction, a series of rules under which
it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision." Id., at 346, 56 S.Ct., at
482. The second of
those rules applies directly to this case.
"2. The Court
will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' Liverpool,
N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 U.S. 33, 39 [5 S.Ct.
352, 355, 28 L.Ed. 899]; [citing five additional cases].
'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the
case.' Burton v. United
States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482]."
Id., at 346-347, 56 S.Ct., at 483.
Cavalierly dismissing the doctrine of judicial restraint, the
Court today tersely announces that "we do not think it prudent to
apply that prudential requirement here."
Ante, at  2892.
I respectfully disagree and would save consideration of the merits
for another day. Since,
however, the Court has reached the merits, I shall do so as well.
In its analysis of the merits, the Court starts from the
premise that this Court has adopted a "categorical rule that total
regulatory takings must be compensated," ante, at 2899, and then sets
itself to the task of identifying the exceptional cases in which a State
may be relieved of this categorical obligation, ante, at 2899-2900. The test the Court announces is that the regulation
must do no more than duplicate the result that could have been achieved
under a State's nuisance law. Ante,
at 2900. Under this
test the categorical rule will apply unless the regulation merely makes
explicit what was otherwise an implicit limitation on the owner's property
In my opinion, the Court is doubly in error.
The categorical rule the Court establishes is an unsound and unwise
addition to the law and the Court's formulation of the exception to that
rule is too rigid and too narrow.
The Categorical Rule
As the Court recognizes, ante, at 2892-2893, Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), provides no
support for its -- or, indeed, any -- categorical rule.
To the contrary, Justice Holmes recognized that such absolute rules
ill fit the inquiry into "regulatory takings." Thus, in the paragraph that contains his famous
observation that a regulation may go "too far" and thereby
constitute a taking, the Justice wrote:
"As we already have said, this is a question of degree -- and
therefore cannot be disposed of by general propositions."
Id., at 416, 43 S.Ct., at 160.
What he had "already ... said" made perfectly clear that
Justice Holmes regarded economic injury to be merely one factor to be
weighed: "One fact for
consideration in determining such limits is the extent of the diminution [1064 of value.] So
the question depends upon the particular facts." Id., at 413, 43 S.Ct., at 159.
Nor does the Court's new categorical rule find support in
decisions following Mahon.
Although in dicta we have sometimes recited that a law
"effects a taking if [it] ... denies an owner economically viable use
of his land," Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct.
2138, 2141, 65 L.Ed.2d 106 (1980), our rulings have rejected such an
absolute position. We
have frequently -- and recently -- held that, in some circumstances, a law
that renders property valueless may nonetheless not constitute a taking.
See, e.g., First English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, 482 U.S. 304, 313, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250
(1987); Goldblatt v.
Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130 (1962);
United States v. Caltex, 344 U.S. 149, 155, 73 S.Ct. 200, 203, 97
L.Ed. 157 (1952); Miller v.
Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928);
Hadacheck v. Sebastian, 239 U.S. 394, 405, 36 S.Ct. 143, 143, 60
L.Ed. 348 (1915); Mugler v.
Kansas, 123 U.S. 623, 657, 8 S.Ct. 273, 294, 31 L.Ed. 205 (1887);
cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011, 104 S.Ct.
2862, 2877, 81 L.Ed.2d 815 (1984); Connolly
v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 225, 106 S.Ct.
1018, 1026, 89 L.Ed.2d 166 (1986).
In short, as we stated in Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U.S. 470, 490, 107 S.Ct. 1232, 1244, 94 L.Ed.2d 472
(1987), " 'Although a comparison of values before and after' a
regulatory action 'is relevant, ... it is by no means conclusive.' "
In addition to lacking support in past decisions, the Court's
new rule is wholly arbitrary. A
landowner whose property is diminished in value 95% recovers nothing,
while an owner whose property is diminished 100% recovers the land's full
value. The case at hand
illustrates this arbitrariness well.
The Beachfront Management Act not only prohibited the building of
new dwellings in certain areas, it also prohibited the rebuilding of
houses that were "destroyed beyond repair by natural causes or by
fire." 1988 S.C. Acts 634, § 3;
see also Esposito v. South Carolina Coastal Council, 939 F.2d 165,
167 (CA4 1991). [FN2] Thus,
if the homes adjacent to Lucas'
1065 lot were destroyed by a hurricane one day after the Act took
effect, the owners would not be able to rebuild, nor would they be assured
recovery. Under the
Court's categorical approach, Lucas (who has lost the opportunity to
build) recovers, while his neighbors (who have lost both the opportunity
to build and their homes) do not recover.
The arbitrariness of such a rule is palpable.
FN2. This aspect of the Act
was amended in 1990. See
S.C. Code Ann. § 48-39-290(B) (Supp.1990).
Moreover, because of the elastic nature of property rights,
the Court's new rule will also prove unsound in practice. In response to the rule, courts may define
"property" broadly and only rarely find regulations to effect
total takings. This is
the approach the Court itself adopts in its revisionist reading of
venerable precedents. We
are told that -- notwithstanding the Court's findings to the contrary in
each case -- the brewery in Mugler, the brickyard in Hadacheck, and the
gravel pit in Goldblatt all could be put to "other uses" and
that, therefore, those cases did not involve total regulatory takings.
[FN3] Ante, at 2899, n. 13.
FN3. Of course, the
same could easily be said in this case:
Lucas may put his land to "other uses" -- fishing or
camping, for example -- or may sell his land to his neighbors as a buffer.
In either event, his land is far from "valueless."
highlights a fundamental weakness in the Court's analysis:
its failure to explain why only the impairment of
"economically beneficial or productive use," ante, at 2893
(emphasis added), of property is relevant in takings analysis.
I should think that a regulation arbitrarily prohibiting an owner
from continuing to use her property for bird watching or sunbathing might
constitute a taking under some circumstances;
and, conversely, that such uses are of value to the owner.
Yet the Court offers no basis for its assumption that the only uses
of property cognizable under the Constitution are developmental uses.
On the other hand, developers and investors may market
specialized estates to take advantage of the Court's new rule. The smaller the estate, the more likely that a
regulatory change will effect a total taking.
Thus, an investor may, for example, purchase the right to build a
multifamily home on a specific lot, with the result that a zoning
regulation that 1066 allows only single-family homes would render the investor's
property interest "valueless."
[FN4] In short, the
categorical rule will likely have one of two effects:
Either courts will alter the definition of the
"denominator" in the takings "fraction," rendering the
Court's categorical rule meaningless, or investors will manipulate the
relevant property interests, giving the Court's rule sweeping effect.
To my mind, neither of these results is desirable or appropriate,
and both are distortions of our takings jurisprudence.
FN4. This unfortunate possibility is created by the Court's subtle
revision of the "total regulatory takings" dicta.
In past decisions, we have stated that a regulation effects a
taking if it "denies an owner economically viable use of his
land," Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980) (emphasis added), indicating that this
"total takings" test did not apply to other estates. Today,
however, the Court suggests that a regulation may effect a total taking of
any real property interest. See
ante, at 2894, n. 7.
Finally, the Court's
justification for its new categorical rule is remarkably thin.
The Court mentions in passing three arguments in support of its
rule; none is convincing. First, the Court suggests that "total deprivation
of feasible use is, from the landowner's point of view, the equivalent of
a physical appropriation." Ante,
at 2894. This argument
proves too much. From the "landowner's point of view," a
regulation that diminishes a lot's value by 50% is as well "the
equivalent" of the condemnation of half of the lot.
Yet, it is well established that a 50% diminution in value does not
by itself constitute a taking.
See Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 47 S.Ct. 114,
117, 71 L.Ed. 303 (1926) (75% diminution in value).
Thus, the landowner's perception of the regulation cannot justify
the Court's new rule.
Second, the Court
emphasizes that because total takings are "relatively rare" its
new rule will not adversely affect the government's ability to "go
on." Ante, at 2894.
This argument proves too little.
Certainly it is true that defining a small class of regulations
that are per se takings will not 1067 greatly hinder important governmental
functions‑‑but this is true of any small class of regulations.
The Court's suggestion only begs the question of why regulations of
this particular class should always be found to effect takings.
Finally, the Court
suggests that "regulations that leave the owner ... without
economically beneficial ... use ... carry with them a heightened risk that
private property is being pressed into some form of public service."
Ibid. As discussed more fully below, see Part III, infra, I agree
that the risks of such singling out are of central concern in takings law.
However, such risks do not justify a per se rule for total
regulatory takings. There
is no necessary correlation between "singling out" and total
takings: A regulation may
single out a property owner without depriving him of all of his property,
see, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 837, 107
S.Ct. 3141, 3149, 97 L.Ed.2d 677 (1987);
J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 432 A.2d 12
(1981); and it may deprive
him of all of his property without singling him out, see, e.g., Mugler v.
Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887);
Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348
(1915). What matters in
such cases is not the degree of diminution of value, but rather the
specificity of the expropriating act.
For this reason, the Court's third justification for its new rule
In short, the Court's
new rule is unsupported by prior decisions, arbitrary and unsound in
practice, and theoretically unjustified.
In my opinion, a categorical rule as important as the one
established by the Court today should be supported by more history or more
reason than has yet been provided.
The Nuisance Exception
Like many bright-line
rules, the categorical rule established in this case is only
"categorical" for a page or two in the U.S. Reports.
No sooner does the Court state that "total regulatory takings
must be compensated,"
ante, at 2899, than it quickly establishes an exception to that
1068 The exception
provides that a regulation that renders property valueless is not a taking
if it prohibits uses of property that were not "previously
permissible under relevant property and nuisance principles." Ante,
at 2901. The Court thus
rejects the basic holding in Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273,
31 L.Ed. 205 (1887). There
we held that a state-wide statute that prohibited the owner of a brewery
from making alcoholic beverages did not effect a taking, even though the
use of the property had been perfectly lawful and caused no public harm
before the statute was enacted.
We squarely rejected the rule the Court adopts today:
"It is true,
that, when the defendants ... erected their breweries, the laws of the
State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or
come under an obligation, that its legislation upon that subject would
remain unchanged. [T]he
supervision of the public health and the public morals is a governmental
power, 'continuing in its nature,' and 'to be dealt with as the special
exigencies of the moment may require;'
... 'for this purpose, the largest legislative discretion is
allowed, and the discretion cannot be parted with any more than the power
itself.' " Id., at 669,
8 S.Ct., at 301.
Under our reasoning in Mugler, a State's decision to prohibit
or to regulate certain uses of property is not a compensable taking just
because the particular uses were previously lawful.
Under the Court's opinion today, however, if a State should decide
to prohibit the manufacture of asbestos, cigarettes, or concealable
firearms, for example, it must be prepared to pay for the adverse economic
consequences of its decision. One
must wonder if government will be able to "go on" effectively if
it must risk compensation "for every such change in the general
law." Mahon, 260 U.S.,
at 413, 43 S.Ct., at 159.
The Court's holding today effectively freezes the State's
common law, denying the legislature much of its traditional 1069 power to revise the law governing the rights and uses of
property. Until today,
I had thought that we had long abandoned this approach to constitutional
law. More than a
century ago we recognized that "the great office of statutes is to
remedy defects in the common law as they are developed, and to adapt it to
the changes of time and circumstances."
Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1877).
As Justice Marshall observed about a position similar to that
adopted by the Court today:
accepted, that claim would represent a return to the era of Lochner v. New
York, 198 U.S. 45 [25 S.Ct. 539, 49 L.Ed. 937] (1905), when common-law
rights were also found immune from revision by State or Federal
Government. Such an approach
would freeze the common law as it has been constructed by the courts,
perhaps at its 19th-century state of development.
It would allow no room for change in response to changes in
circumstance. The Due Process Clause does not require such a
Shopping Center v. Robins, 447 U.S. 74, 93, 100 S.Ct. 2035, 2047, 64
L.Ed.2d 741 (1980) (concurring opinion).
the development of the common law is not only a departure from our prior
decisions; it is also profoundly unwise.
The human condition is one of constant learning and evolution --
both moral and practical. Legislatures
implement that new learning; in
doing so they must often revise the definition of property and the rights
of property owners. Thus,
when the Nation came to understand that slavery was morally wrong and
mandated the emancipation of all slaves, it, in effect, redefined
a lesser scale, our ongoing self-education produces similar changes in the
rights of property owners: New
appreciation of the significance of endangered species, see, e.g., Andrus
v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979);
the importance of wetlands, see, e.g., 16 U.S.C. § 3801 et seq.; and **2922
the vulnerability of coastal 1070
lands, see, e.g., 16 U.S.C. § 1451 et seq., shapes our evolving
understandings of property rights.
course, some legislative redefinitions of property will effect a taking
and must be compensated -- but it certainly cannot be the case that every
movement away from common law does so.
There is no reason, and less sense, in such an absolute rule.
We live in a world in which changes in the economy and the
environment occur with increasing frequency and importance.
If it was wise a century ago to allow government " 'the
largest legislative discretion' " to deal with " 'the special
exigencies of the moment,' " Mugler, 123 U.S., at 669, 8 S.Ct., at
301, it is imperative to do so today.
The rule that should govern a decision in a case of this kind
should focus on the future, not the past. [FN5]
FN5. Even measured in terms
of efficiency, the Court's rule is unsound.
The Court today effectively establishes a form of insurance against
certain changes in land-use regulations.
Like other forms of insurance, the Court's rule creates a
"moral hazard" and inefficiencies: In the face of uncertainty
about changes in the law, developers will overinvest, safe in the
knowledge that if the law changes adversely, they will be entitled to
generally Farber, Economic Analysis and Just Compensation, 12 Int'l Rev.
of Law & Econ. 125 (1992).
Court's categorical approach rule will, I fear, greatly hamper the efforts
of local officials and planners who must deal with increasingly complex
problems in land-use and environmental regulation.
As this case -- in which the claims of an individual property owner
exceed $1 million -- well demonstrates, these officials face both
substantial uncertainty because of the ad hoc nature of takings law and
unacceptable penalties if they guess incorrectly about that law. [FN6]
FN6. As the Court
correctly notes, in regulatory takings, unlike physical takings, courts
have a choice of remedies. See
ante, at 2901, n. 17. They
may "invalidat[e the] excessive regulation" or they may "allo
[w] the regulation to stand and orde[r] the government to afford
compensation for the permanent taking."
First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 335, 107 S.Ct. 2378, 2396, 96 L.Ed.2d 250
(1987) (STEVENS, J., dissenting); see
also id., at 319‑321, 107 S.Ct., at 2388-2389.
In either event, however, the costs to the government are likely to
be substantial and are therefore likely to impede the development of sound
Viewed more broadly, the Court's new rule and exception conflict with the
very character of our takings jurisprudence.
We have frequently and consistently recognized that the definition
of a taking cannot be reduced to a "set formula" and that
determining whether a regulation is a taking is "essentially [an] ad
hoc, factual inquir[y]." Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct.
2646, 2659, 57 L.Ed.2d 631 (1978) (quoting Goldblatt v. Hempstead, 369
U.S., at 594, 82 S.Ct., at 990. This is unavoidable, for the determination
whether a law effects a taking is ultimately a matter of "fairness
and justice," Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.
1563, 1569, 4 L.Ed.2d 1554 (1960), and "necessarily requires a
weighing of private and public interests," Agins, 447 U.S., at 261,
100 S.Ct., at 2141. The
rigid rules fixed by the Court today clash with this enterprise:
"fairness and justice" are often disserved by categorical
It is well established that a takings case "entails
inquiry into [several factors:] the
character of the governmental action, its economic impact, and its
interference with reasonable investment-backed expectations."
PruneYard, 447 U.S., at 83, 100 S.Ct., at 2042.
The Court's analysis today focuses on the last two of these three
factors: The categorical rule
addresses a regulation's "economic impact," while the nuisance
exception recognizes that ownership brings with it only certain
by the Court today is the first and, in some ways, the most important
factor in takings analysis: the
character of the regulatory action.
The Just Compensation Clause "was designed to bar
Government from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole."
Armstrong, 364 U.S., at 49, 80 S.Ct., at 1569.
Accordingly, one of the central concerns of our takings
jurisprudence is "prevent[ing] the public from loading upon one
individual more than his just share of the burdens of government."
Monongahela Navigation Co. v. United
 States, 148 U.S. 312, 325, 13 S.Ct. 622, 626, 37 L.Ed. 463
(1893). We have,
therefore, in our takings law frequently looked to the generality of a
regulation of property. [FN7]
This principle of generality is well rooted in our broader understandings
of the Constitution as designed in part to control the "mischiefs of
faction." See The
Federalist No. 10, p. 43 (G. Wills ed. 1982) (J. Madison).
An analogous concern arises in First Amendment law.
There we have recognized that an individual's rights are not
violated when his religious practices are prohibited under a neutral law
of general applicability. For
example, in Employment Div., Dept. of Human Resources of Oregon v.
Smith, 494 U.S. 872, 879-880, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876
(1990), we observed: "[Our] decisions have consistently held that the
right of free exercise does not relieve an individual of the obligation to
comply with a 'valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).' United
States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct. 1051, 1054, n. 3, 71
L.Ed.2d 127 (1982) (STEVENS, J., concurring in judgment)....
In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.
645 (1944), we held that a mother could be prosecuted under the child
labor laws for using her children to dispense literature in the streets,
her religious motivation notwithstanding.
We found no constitutional infirmity in 'excluding [these children]
from doing there what no other children may do.'
Id., at 171, 64 S.Ct., at 444.
In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563
(1961) (plurality opinion), we upheld Sunday-closing laws against the
claim that they burdened the religious practices of persons whose
religions compelled them to refrain from work on other days.
In Gillette v. United States, 401 U.S. 437, 461, 91 S.Ct. 828, 842,
28 L.Ed.2d 168 (1971), we sustained
the military Selective Service System against the claim that it violated
free exercise by conscripting persons who opposed a particular war on
religious grounds." If such a neutral law of general applicability
may severely burden constitutionally protected interests in liberty, a
comparable burden on property owners should not be considered unreasonably
For example, in the
case of so-called "developmental exactions," we have paid
special attention to the risk that particular landowners might "b[e]
singled out to bear the burden" of a broader problem not of his own
making. Nollan, 483 U.S., at
835, n. 4, 107 S.Ct., at 3148, n. 4;
see also Pennell v. San Jose, 485 U.S. 1, 23, 108 S.Ct. 849, 863,
99 L.Ed.2d 1 (1988). Similarly,
in distinguishing between the Kohler Act (at issue in Mahon ) and the
Subsidence Act (at issue in Keystone ), we found significant that the
regulatory function of the latter was substantially broader.
Unlike the Kohler 1073
Act, which simply transferred back to the surface owners certain rights
that they had earlier sold to the coal companies, the Subsidence Act
affected all surface owners -- including the coal companies -- equally.
See Keystone, 480 U.S., at 486, 107 S.Ct., at 1242.
Perhaps the most familiar application of this principle of
generality arises in zoning cases.
A diminution in value caused by a zoning regulation is far less
likely to constitute a taking if it is part of a general and comprehensive
land‑use plan, see Euclid v. Ambler Realty Co., 272 U.S. 365, 47
S.Ct. 114, 71 L.Ed. 303 (1926); conversely,
"spot zoning" is far more likely to constitute a taking, see
Penn Central, 438 U.S., at 132, and n. 28, 98 S.Ct., at 2663, and n. 28.
The presumption that a
permanent physical occupation, no matter how slight, effects a taking is
wholly consistent with this principle.
A physical taking entails a certain amount of "singling
Consistent with this principle, physical occupations by third
parties are more likely to effect takings than other physical occupations.
Thus, a regulation requiring the installation of a junction box
owned by a third party, Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), is more troubling than a
regulation requiring the installation of sprinklers or smoke detectors;
just as an order granting third parties access to a marina, Kaiser
Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332
(1979), is more troubling than an order requiring the placement of safety
buoys in the marina.
FN8. See Levmore, Takings, Torts, and Special Interests, 77
Va.L.Rev. 1333, 1352-1354 (1991).
In analyzing takings
claims, courts have long recognized the difference between a regulation
that targets one or two parcels of land and a regulation that enforces a
statewide policy. See,
e.g., A.A. Profiles, Inc. v. Ft. Lauderdale, 850 F.2d 1483, 1488 (CA11
1988); Wheeler v. Pleasant Grove, 664 F.2d 99, 100 (CA5 1981);
Trustees Under Will of Pomeroy v. Westlake, 357 So.2d 1299, 1304
(La.App.1978); see also
Burrows v. Keene, 121 N.H. 590, 596, 432 A.2d 15, 21 (1981);
Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324-325
(Mo.App.1976); Huttig v.
Richmond Heights,  372
S.W.2d 833, 842-843 (Mo.1963).
As one early court stated with regard to a waterfront regulation,
"If such restraint were in fact imposed upon the estate of one
proprietor only, out of several estates on the same line of shore, the
objection would be much more formidable."
Commonwealth v. Alger, 61 Mass. 53, 102 (1851).
In considering Lucas'
claim, the generality of the Beachfront Management Act is significant.
The Act does not target particular landowners, but rather regulates
the use of the coastline of the entire State.
See S.C. Code Ann. § 48-39-10 (Supp.1990).
Indeed, South Carolina's Act is best understood as part of a
national effort to protect the coastline, one initiated by the federal
Coastal Zone Management Act of 1972.
Pub.L. 92-583, 86 Stat. 1280, codified as amended at 16 U.S.C. §
1451 et seq. Pursuant
to the federal Act, every coastal State has implemented coastline
regulations. [FN9] Moreover,
the Act did not single out owners of undeveloped land. The Act also
prohibited owners of developed land from rebuilding if their structures
were destroyed, see 1988 S.C. Acts 634, § 3, [FN10] and what is equally
significant, from repairing erosion control devices, such as seawalls, see
S.C. Code Ann. § 48-39-290(B)(2) (Supp.1990).
In addition, in some situations, owners of developed land were
required to "renouris[h] the beach ... on a yearly basis with an
amount ... of sand ... not ... less than one and one-half times the yearly
volume of sand lost due to erosion."
1988 S.C. Acts 634, § 3, p. 5140. [FN11]
In short, the South Carolina Act imposed substantial burdens on
owners of developed and undeveloped 1075 land alike. [FN12] This
generality indicates that the Act is not an effort to expropriate owners
of undeveloped land.
FN9. See Zalkin, Shifting Sands and Shifting Doctrines:
The Supreme Court's Changing Takings Doctrine and South Carolina's
Coastal Zone Statute, 79 Calif.L.Rev. 205, 216-217, nn. 46-47 (1991)
FN10. This provision was amended in 1990.
See S.C. Code Ann. § 48-39-290(B) (Supp.1990).
FN11. This provision was amended in 1990;
authority for renourishment was shifted to local governments.
See S.C. Code Ann. § 48-39-350(A) (Supp.1990).
FN12. In this regard, the Act more closely resembles the Subsidence
Act in Keystone than the Kohler Act in Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), and more closely resembles
the general zoning scheme in Euclid v. Ambler Realty Co., 272 U.S. 365, 47
S.Ct. 114, 71 L.Ed. 303 (1926), than the specific landmark designation in
Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct.
2646, 57 L.Ed.2d 631 (1978).
economic impact of this regulation is dramatic and petitioner's investment-backed
expectations are substantial. Yet,
if anything, the costs to and expectations of the owners of developed land
are even greater: I doubt,
however, that the cost to owners of developed land of renourishing the
beach and allowing their seawalls to deteriorate effects a taking. The costs imposed on the owners of undeveloped land,
such as petitioner, differ from these costs only in degree, not in kind.
The impact of the ban
on developmental uses must also be viewed in light of the purposes of the
Act. The legislature
stated the purposes of the Act as "protect[ing], preserv[ing],
restor[ing] and enhanc[ing] the beach/dune system" of the State not
only for recreational and ecological purposes, but also to "protec[t]
life and property." S.C.
Code Ann. § 48-39-260(1)(a) (Supp.1990).
The State, with much science on its side, believes that the
"beach/dune system [acts] as a buffer from high tides, storm surge,
[and] hurricanes." Ibid.
This is a traditional and important exercise of the State's police
power, as demonstrated by Hurricane Hugo, which in 1989, caused 29 deaths
and more than $6 billion in property damage in South Carolina alone.
FN13. Zalkin, 79 Calif.L.Rev., at 212-213.
In view of all of
these factors, even assuming that petitioner's property was rendered
valueless, the risk inherent in investments of the sort made by
petitioner, the generality of the Act, and the compelling purpose
motivating the South 1076 Carolina Legislature persuade me that the Act did not effect a
taking of petitioner's property.
Statement of Justice
I would dismiss the
writ of certiorari in this case as having been granted improvidently.
After briefing and argument it is abundantly clear that an
unreviewable assumption on which this case comes to us is both
questionable as a conclusion of Fifth Amendment law and sufficient to
frustrate the Court's ability to render certain the legal premises on
which its holding rests.
The petition for
review was granted on the assumption that the State by regulation had
deprived the owner of his entire economic interest in the subject
property. Such was the
state trial court's conclusion, which the State Supreme Court did not
review. It is apparent
now that in light of our prior cases, see, e.g., Keystone Bituminous Coal
Assn. v. DeBenedictis, 480 U.S. 470, 493-502, 107 S.Ct. 1232, 1246-1251,
94 L.Ed.2d 472 (1987); Andrus
v. Allard, 444 U.S. 51, 65-66, 100 S.Ct. 318, 326-327, 62 L.Ed.2d 210
(1979); Penn Central Transportation Corp. v. New York City, 438 U.S. 104,
130-131, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631 (1978), the trial court's
conclusion is highly questionable.
While the respondent now wishes to contest the point, see Brief for
Respondent 45-50, the Court is certainly right to refuse to take up the
issue, which is not fairly included within the question presented, and has
received only the most superficial and one-sided treatment before us.
questionable conclusion of total deprivation cannot be reviewed, the Court
is precluded from attempting to clarify the concept of total (and, in the
Court's view, categorically compensable) taking on which it rests, a
concept which the Court describes, see ante, at 2893, n. 6, as so
uncertain under existing law as to have fostered inconsistent
pronouncements by the Court itself.
Because that concept is left uncertain, so is the significance of
the exceptions to the compensation requirement that the Court proceeds to
1077 This alone is enough to show that there is little utility
in attempting to deal with this case on the merits.
The imprudence of
proceeding to the merits in spite of these unpromising circumstances is
underscored by the fact that, in doing so, the Court cannot help but
assume something about the scope of the uncertain concept of total
deprivation, even when it is barred from explicating total deprivation
directly. Thus, when
the Court concludes that the application of nuisance law provides an
exception to the general rule that complete denial of economically
beneficial use of property amounts to a compensable taking, the Court will
be understood to suggest (if it does not assume) that there are in fact
circumstances in which state-law nuisance abatement may amount to a denial
of all beneficial land use as that concept is to be employed in our
takings jurisprudence under the Fifth and Fourteenth Amendments.
The nature of nuisance law, however, indicates that application of
a regulation defensible on grounds of nuisance prevention or abatement
will quite probably not amount to a complete deprivation in fact.
The nuisance enquiry focuses on conduct, not on the character of
the property on which that conduct is performed, see 4 Restatement
(Second) of Torts § 821B (1979) (public nuisance);
id., § 822 (private nuisance), and the remedies for such conduct
usually leave the property owner with other reasonable uses of his
property, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts § 90 (5th ed. 1984) (public nuisances usually
remedied by criminal prosecution or abatement), id., § 89 (private
nuisances usually remedied by damages, injunction, or abatement);
see also, e.g., Mugler v. Kansas, 123 U.S. 623, 668-669, 8 S.Ct.
273, 301, 31 L.Ed. 205 (1887) (prohibition on use of property to
manufacture intoxicating beverages "does not disturb the owner in the
control or use of his property for lawful purposes, nor restrict his right
to dispose of it, but is only a declaration by the State that its use ...
for certain forbidden purposes, is prejudicial to the public
v. Sebastian,  239 U.S.
394, 412, 36 S.Ct. 143, 146, 60 L.Ed. 348 (1915) (prohibition on operation of brickyard did not
prohibit extraction of clay from which bricks were produced). Indeed, it is difficult to imagine property that can be
used only to create a nuisance, such that its sole economic value must
presuppose the right to occupy it for such seriously noxious activity.
The upshot is that the
issue of what constitutes a total deprivation is being addressed by
indirection, and with uncertain results, in the Court's treatment of
defenses to compensation claims.
While the issue of what constitutes total deprivation deserves the
Court's attention, as does the relationship between nuisance abatement and
such total deprivation, the Court should confront these matters directly.
Because it can neither do so in this case, nor skip over those
preliminary issues and deal independently with defenses to the Court's
categorical compensation rule, the Court should dismiss the instant writ
and await an opportunity to face the total deprivation question squarely.
Under these circumstances, I believe it proper for me to vote to
dismiss the writ, despite the Court's contrary preference.
See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 755, 104 S.Ct. 2091,
2100, 80 L.Ed.2d 732 (1984) (Burger, C.J.);
United States v. Shannon, 342 U.S. 288, 294, 72 S.Ct. 281, 285, 96
L.Ed. 321 (1952) (Frankfurter, J.).