Reply Brief — Lucas v. South Carolina Coastal Council

In The Leen

Supreme Court of the United States

October Term, 1991

¢

DAVID H. LUCAS,

Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

e

Petition For A Writ Of Certiorari To The Supreme Court

Of The State Of South Carolina

¢

REPLY TO BRIEF IN OPPOSITION

Davip J. BEDERMAN

Of Counsel

S

A. CAMDEN Lewis

Counsel of Record

Lewis, Bascock & HaAwkINs

1513 Hampton Street

P.O. Box 11208

Columbia, South Carolina 29211

(803) 771-8000

GERALD M. FINKEL

Attorney for Petitioner

FinkeL, GOLDBERG, SHEFTMAN &

ALTMAN

P.O. Box 1799

Columbia, South Carolina 29202

Emory University School of Law

Gambrell Hall

Atlanta, Georgia 30322

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (42) 342-2831

No. 91-453

+

In The

Supreme Court of the United States

October Term, 1991

—_—_—_—-

DAVID H. LUCAS,

Petitioner,

V.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

¢

Petition For A Writ Of Certiorari To The Supreme Court

Of The State Of South Carolina

+

REPLY TO BRIEF IN OPPOSITION

—— 9

Pursuant to Supreme Court Rule 15.6, the Petitioner,

David H. Lucas, respectfully submits this Reply to Brief

in Opposition.

*

ARGUMENT

THIS MATTER IS RIPE FOR ADJUDICATION

Respondent, South Carolina Coastal Council, main-

tains (Resp. 5) that Petitioner has failed to exhaust admin-

istrative remedies available to him, and, as a

consequence, this matter is not ripe for adjudication and

that the Petition should be denied. More specifically,

Respondent claims that section 48-39-290(D) of the South

Carolina Beachfront Management Act (“the Act”), S.C.

Code Ann. § 48-39-10 et seq. (Law Co-op. 1990) (reprinted

at Pet. App. 125) provides the Petitioner with the possi-

bility of seeking a special permit from the South Carolina

Coastal Council at any time. Petitioner maintains that this

argument is without substance.

Section 48-39-290(D) of the Act was adopted on June

25, 1990, more than two years after the South Carolina

Coastal Council had drawn the setback lines which pre-

vented David H. Lucas from building on his property.'

For the two years prior to the 1990 amendments to the

Act, the Petitioner was thus without any administrative

remedy. During this two years period, the regulatory

taking of the South Carolina Coastal Council could not

have been relieved by any remedy, save for judicial

review. Under First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), this temporary

taking suffices to defeat any assertion that a State’s regu-

lation did not ripen, for purposes of justifiability, into a

compensable action. Id. at 314-22. First English modified

Agins v. Tiburon, 447 U.S. 255 (1980), and its progeny,” to

' Presiding Judge Patterson of the Circuit Court of Char-

leston County found that the South Carolina Coastal Council's

regulation against building went into effect against Mr. Lucas’s

property sometime after July 1, 1988. See Pet. App. 35. Judge

Patterson also found that the prohibition on the construction

on Mr. Lucas’s property was permanent. See Pet. App. 37. This

finding of fact has never been disturbed on appeal.

2 See e.g., MacDonald, Sommer & Frates v. County of Yolo, 477

U.S. 340 (1986); Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) (as cited at Resp. 5).

the extent those cases purported to deny review of tem-

porary regulatory takings claims for lack of finality. See

First English, 482 U.S. at 311-12. Mr. Lucas’s case is in

precisely the same posture as that of the petitioner in

First English.

And, as has already been noted (Pet. 8 n.2), the South

Carolina Supreme Court, in rendering its judgment in this

case of February 11, 1991, did not consider the impact of

the 1990 amendment in providing administrative relief to

property owners. The South Carolina Coastal Council

sought to brief this issue, but this request was denied by

that court. The South Carolina Supreme Court thus

implicitly held that Mr. Lucas had a ripe claim for com-

pensation under the Constitution’s Fifth Amendment.

The issue of finality should not bar the Court’s grant-

ing of a Petition of Certiorari in this case, if it is otherwise

disposed to do so.

Respectfully submitted,

A. CamMpeEN Lewis GERALD M. FINKE

Counsel of Record Attorney for Petitioner

Lewis, Bascock & Hawkins — FINKEL, GOLDBERG, SHEFTMAN &

1513 Hampton Street ALTMAN

P.O. Box 11208 P.O. Box 1799

Columbia, South Carolina Columbia, South Carolina 29202

one iin seen Davip J. BepeERMAN

Of Counsel

Emory University School of Law

Gambrell Hall

Atlanta, Georgia 30322

October 24, 1991

3 This conclusion should suffice at this stage of the pro-

ceedings. Petitioner is not prepared to concede, of course, that

he suffered only a temporary taking between June 1988 and

June 1990.