Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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No. 91-453 | TAR & 1992

Orrick Ur THE CLERK

$n the Supreme Court of the United

OCTOBER TERM, 1991

DAVID H. LUCAS, PETITIONER

SOUTH CAROLINA COASTAL COUNCIL

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

BRIEF FOR THE

UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF REVERSAL

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

BENEDICT S. COHEN

Acting Deputy Assistant Attorney

General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

PETER R. STEENLAND

JAMES E. BROOKSHIRE

JOHN A. BRYSON

MARTIN W. MATZEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

This case involves the application to petitioner’s

beachfront lots of South Carolina’s 1988 Beachfront

Management Act. When this case arose, that Act pro-

hibited the building of any habitable structure sea-

ward of a setback line established by the South Caro-

lina Coastal Council. The questions presented are:

1. Whether petitioner has a ripe claim that appli-

cation of the Beachfront Management Act resulted in

a taking of his property, in light of 1990 amend-

ments to the Act that provide for issuance of special

permits to build structures seaward of the setback

line in certain circumstances.

2. Whether application of the Act to petitioner’s

lots results in a taking of property for which pay-

ment of compensation is required by the Fifth

Amendment.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ...............................00000000...00-. 1

Statement .......... EA ee 2

EE 6

Argument:

I. This case should be considered in light of the

special permit provisions enacted by the 1990

Amendments to the 1988 Beachfront Manage-

ment Act ............. a ccemapenne 8

II. A limited category of regulatory measures de-

signed to prevent nuisances or other serious

harms to public health or safety do not constitute

a taking even if the value of affected property is

substantially diminished ........................................ 11

Ill. The category of measures that do not constitute

a taking solely because they are designed to pre-

vent nuisances and other harmful uses of prop-

erty must be limited by reference to the nature,

degree, proximity and context of the harm ___. 17

a . ccuwnsnonccwocsegsccsccavers 26

TABLE OF AUTHORITIES

Cases:

Adolph Vv. FEMA, 854 F.2d 732 (5th Cir. 1988) _. 2

Agins V. City of Tiburon, 447 U.S. 255 (1980) ........ 25

Babcock Vv. City of Buffalo, 56 N.Y. 268 (1874) _.... 24

Bowditch Vv. Boston, 101 U.S. 16 (1879) ......... sites 14

Chenango Bridge Co. v. Page, 83 N.Y. 178 (1880)... 24

Chicago, B. & Q. Ry. Vv. United States, 200 U.S.

561 (1906) ................ a .. 20,91

Commonwealth v. Alger, 61 Mass. 53 (1851) 16, 23, 24

Commonwealth v. Tewksbury, 52 Mass. 55 (1846)... 16

Connolly v. PBGC, 475 U.S. 211 (1986) nen 25

Empire Kosher Poultry, Inc. Vv. Hallowell, 816 F.2d

Nee nc ccewenccuseneveccenccseees 13

Esposito vy. South Carolina Coastal Comm’n, 939

| 23

(III)

Cases—Continued: Page

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)... 23

Fertilizing Co. Vv. Hyde Park, 97 U.S. 659 (1878).. 15

Gilman Vv. Philadelphia, 70 U.S. (3 Wall.) 713

SUIT xi... 2. eosccsencecensasnsesunnemcaiascansedaaiemeianeennamiens 13

Goldblatt v. Town of Hempstead, 369 U.S. 590

ESRC Me cesT eRORTe ¥ Sab Cs Pere aadicaii 17, 25

Griffin v. United States, No. 90-6352 (Dec. 3,

I 15

Hadacheck v. Sebastian. 239 U.S. 394 (1915) ......... 16, 23

Kaiser Aetna Vv. United States, 444 U.S. 164

II co cinitsraanceslsaccledaniaecteshaeteiaaniienveniiniaiacdameliaiaamiemanes 25

Keystone Bituminous Coal Ass’n V. DeBenedictis,

fs fee 5, 17, 18, 29, 21

Kincaid, Appeal of, 66 Pa. 411 (1870) —_. a 16

Laurel Hill Cemetery v. San Francisco, 216 U.S.

S58 Cieee) .............. 16

MacDonald, Sommer & Frates v. County of Yolo,

a eee esemneas 9

McDougal v. County of Imperial, 942 F.2d 668

(9th Cir. 1991) - TR a int Set te NTN 13

Midlantic Nat'l Bank Vv. New Jersey Dep't of En-

vironmental Protection, 474 U.S. 494 (1986) 13

Miller v. Schoene, 276 U.S. 272 (1928) ...... .... 17, 18

Monongahela Navigation Co. Vv. United States, 148

U.S. 312 (1893) 7 oe ..... 20, 24

Mouse’s Case, 12 Coke Rep. 62. - 14

Mugler v. Kansas, 123 U.S. 623 (1887). 6. 7, 15, 16, 18, 21

Nollan v. California Coastal Comm’n, 483 U.S. 825

ERB De Si RRA ILE CE VIE Ris ESR ee

Penn Central Transp. Co. v. New York City, 438

U.S. 104 (1978) - a

Pennsylvania Coal Co. Vv. Mahon, 260 U.S. 393

) Saar i 14, 25

People v. Hawley, 8 Mich. 330) (1854) 16

Pumpelly v. Greenbay Co., 80 U.S. (13 Wall.)

166 (1872). 16

Reinman v. City of Little Rock, 237 U.S. 171

(1915) . 16, 23-24

Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357 (Pa.

1788) . SE eS a Pr ) ae 14

Cases—Continued: Page

Russell v. Mayor, ete., of New York, 2 Denio 461

UI: SUEY concndiniinishinnbchlbinnditcoatei nck tig tet tetra, 12

Sligh v. Kirkwood, 237 U.S. 52 (1915) .0000.... 13

Stone V. Mayor & Aldermen, 25 Wend. 157 (N.Y.

RF REESE Brae A SI Seba RL ln RP NR 14

Stuyvesant Vv. Mayor &c. of New York, 7 Cow. 588

SE OEE ae eB Sea OP te 16

The License Cases, 4G U.S. (5 How.) 504 (1847) .. 14

Touby V. United States, 111 8. Ct. 1752 (1991) ..... 12

United States vy. Caltex, Inc., 344 U.S. 149 (1952)... 14

United States v. Riverside Bayview Homes, Inc.,

A a ne 2,9

Williamson County Regional Planning Comm'n V.

Hamilton Bank, 473 U.S. 172 (1985) _.... Sud ee 9, 25

Yancey V. United States, 915 F.2d 1534 (Fed. Cir.

PE cic caibaheaciiniccakes te schiackadhsiisnacetdciea aetna cnet ont caccamcad 13

Constitution, statutes and regulation:

U.S. Const. Amend. V _........... St sila ect gael aes co

Just Compensation Clause .................... 8, 11, 18, 24

Clean Water Act, 38 U.S.C. 1844 ................................ 2

Controlled Substances Act, 21 U.S.C. 861 ef seq. —.... 12

Coastal Zone Management Act of 1972, 16 U.S.C.

1451 et seq.

16 U.S.C, 14 52(2) - jecelaheiahiaomia ssobibeestiaaliaivinaiinioui 2, 20

De Werte BOUND CD oo nnnvcencccctccccenco cece por a a 2, 20

Federal Food, Drug and Cosmetic Act, 21 U.S.C.

301 et seq. Nicihinlccatestadienednitatnet mane i 12

Federal Insecticide, Fungicide, and Rodenticide

Be, DS an, Se Oe OE evict 12

Feueral Meat Inspection Act, 21 U.S.C. 601 eft seq... 12

National Flood Insurance Act of 1968, 42 U.S.C.

4001 et seq. | Pa arae alent 2

42 U.S.C. 4002(b) (3) UNS Sh alge de 2

42 U.S.C. 4022 EERE At Es RIT tO a A TER 2

Poultry Products Inspection Act, 21 U.S.C. 451 et

seq. alameda 12

21 U.S.C. 350a NESE abeTR ERS 12

Statutes and regulation—Continued : Page

Beachfront- Management Act of 1988, S.C. Code

Ann. (Law. Co-op. Supp. 1990):

§ GB-BO-2O(G) 6G) ..-....----.2..20222-0rcecvvereercrecensecneeees 3

§ 48-39-250 (1) (a) ...........-..--------------- hiadiblanietenniiastin 20

IEE CIID occssnnacersavoseoseusenercamersssesoneovenes 19

IED CBD anceenenecvnsscnccssccsssnccsseseseonssnsnsons 19, 20

DID cercsccccesencesnacesereresnsccnnecsencpsamnsonessens 20

IID oc cnssvansopsscsenseepeeannieanerniantionesasests 19

8 48-39-2360 (1) (&)...............---..222002....00000-0020 siete 20

ID COND eccetecsececesennonscccanennccsnanessoconsnes 19

| eee ies 19

PIII <0..citncescsscesenetnnnnpiensnsesacarensssonsesnsinen 20

RID <cicscnnrensessesennesensocneneiensincmectnnnconsssen 20

aa isinasiaieninaseenensiiaseninninamnunantins 19-20

IID ecsccnncccesecesscicceessassnnesuncensnsveinenonnees 9

IIE on sscnnsossiessindinietennctinisnsnaeaneemninnststeess 3

§ 48-39-280(A) (2) ....... PLS Ns) SOR eT. OE OP 3

TEST 4

TTT coocensniiscnscinssenetisebosnincetnesbenmenngnede 23

§ 48-39-290(B) (8) (1988S.C. Acts 5140) _..... 4

I odin coatisemmeniiannnenenenebeemeeoonosen 6,9

§ 48-39-300 (1988S.C. Acts 5144) 0... 4

Coastal Zone Management Act of 1977, S.C. Code

Ann. (Law. Co-op. 1987) :

I copupeamneeninnnioinasieiion 3

REIT AE ea 3

§ 48-39-10(1) .................. BEE ee SEL ee ae ne 3

tT - 5 > | Re euennertee EL er 3

§ 48-39-120 _................ Lua I 3

i iva Oy earns baa ee 3

EEA BRI Beale oso eae ear Cree evo 10

Exec. Order No. 12,630, 3 C.F.R. 555 (1989)

Miscellaneous:

W. Blackstone, Commentaries:

eee aoe ae:

Vol. 4 (1769) Sn EA ie Ail. x 15

54 Fed. Reg. 7580 (1989) . See 1

1 F. Harper, F. James & O. Gray, The ‘Lew of

Ea 5 REE RC eNO Re ee .. 22, 24

2 Kent’s Commentaries _.......... coos 14

Restatement (Second) of Torts (1979) . aad a: 15, 21, 23

§u the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-453

DAvID H. LUCAS, PETITIONER

SOUTH CAROLINA COASTAL COUNCIL

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA

BRIEF FOR THE

UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF REVERSAL

INTEREST OF THE UNITED STATES

This case involves-a claim that application of build-

ing restrictions under South Carolina’s 1988 Beach-

front Management Act to particular beachfront lots

resulted in a taking of property within the meaning

of the Fifth Amendment. The 1988 Act was approved

by the Secretary of Commerce, through the National

Oceanographic and Atmospheric Administration, as

consistent with the Coastal Zone Management Act of

1972 (CZMA), 16 U.S.C. 1451 et seg. 54 Fed. Reg.

7580 (1989). The CZMA establishes a _ national

policy of protecting the resources of the Nation’s

coastal zone and encouraging States to adopt coastal

management programs that, 7nfer alia, seek to mini-

mize the loss of life and property caused by improper

(])

development in flood-prone, storm surge, and erosion-

prone areas and destruction of natural protective fea-

tures such as beaches and dunes. 16 U.S.C. 1452(2),

1456b(a) (2). In addition, the National Flood Insur-

ance Act of 1968, 42 U.S.C. 4001 et seq., administered

by the Federal Emergency Management Agency, con-

ditions availability of federal flood insurance in com-

munities on adoption of adequate flood-plain and land-

use measures that are consistent with federal stand-

ards to reduce future losses. See 42 U.S.C. 4002(b)

(3), 4022; Adolph v. FEMA, 854 F.2d 732 (5th Cir.

1988). Federal agencies also engage in direct regu-

lation that affects real property (see, e.g., Clean

Water Act, 33 U.S.C. 1344; United States v. River-

side Bayview Homes, Inc., 474 U.S. 121, 126-127

(1985) (wetlands)) and personal property (e.g.,

food, drugs, and pesticides). At the same time, the

United States has an obligation to ensure that such

programs are implemented in a manner that respects

basic constitutional protections. See Exec. Order No.

12,630, 3 C.F.R. 555 (1989) (directing the Attorney

General to assist federal agencies to minimize the ex-

tent to which their regulatory activities result in a

taking of property rights).

STATEMENT

1. In December 1986, petitioner purchased two

beachfront lots in the Wi:id Dunes development on the

Isle of Palms in South Carolina. T.R. 27.' He in-

tended to build a single-family residence on each lot,

one for his family and the other for investment. A

house had been constructed on the lot situated be-

tween petitioner’s two lots in the early 1980s; there

1“T R.” refers to the Transcript of Record that was filed

in the South Carolina Supreme Court.

were also houses on other nearby “cachfront lots.

Pet. App. 36.

At the time, activities along the South Carolina

coast were regulated by the State’s Coastal Zone Man-

agement Act of 1977, S.C. Code Ann. §§ 48-39-10

et seq. The 1977 Act established coastal “critical

areas,” which included the beaches and primary

ocean-front sand dunes. § 48-39-10(H), (1) and (J).

The Act directed the South Carolina Coastal Council

to develop an erosion-control policy, § 48-39-120, and

authorized the Council, under general standards, to

issue permits for development within critical areas.

S$ 48-39-130. The line delineating the “critical area”

along the Isle of Palms was seaward of petitioner’s

lots. As a result, those lots were not subject to re-

strictions under the 1977 Act when petitioner pur-

chased them in 1986. Pet. App. 33-34, 36.

2. South Carolina’s regulatory regime changed sig-

nificantly with the enactment of the Beachfront Man-

agement Act, which became effective on July 1, 19838.

The 1988 Act increased protection for the beach /dune

system by extending the “critical area” to the entire

zone hetween the mean high-water mark and a set-

back line fixed by the Council “utilizfing] the best

available scientific and _ historical data.” S.C.

Code Ann. § 48-39-280(A) (Supp. 1990); see also

§$ 48-39-10(.J) (4) (Supp. 1990). Under the statute,

the Council first must establish a “baseline.” In an

erosion zone such as that in which petitioner’s lots are

located—i.e., an inlet zone that has not been stabilized

by jetties or other structures—the baseline must be

at the most Jandward point of erosion during the past

40 years, unless available data “indicate that the

shoreline is unlikely to return to its former position.”

§ 48-39-280(A) (2) (Supp. 1990). The Council then

must establish a setback line landward of the base-

line by a distance 40 times the annual erosion rate,

but not less than 20 feet. § 48-39-280(B) (Supp.

1990). The 1988 Act prohibited construction of

habitable structures seaward of the baseline (and re-

construction of any preexisting structures that may

be damaged beyond repair by natural causes or fire).

$$ 48-39-300, 48-39-290(B) (8) (1988 S.C. Acts 5144,

5140); J.A. 3. As relevant here, the baseline falls

cn the road landward of petitioner’s lots. See DX 22

(J.A.9 (Map) ); T.R. 71.

3. After passage of the 1988 Act, petitioner filed

this inverse condemnation action seeking compensa-

tion for an alleged taking that resulted from applica-

tion of the new statute to his lots. Although peti-

tioner did not apply for a permit from the Council

(or the town) to construct a house on either lot

(T.R. 39-40, 98), the parties stipulated that a per-

mit would have been denied under the 1988 Act had

one been sought. The Council nonetheless “reserve[d]

as an argument concerning temporaiy damages that

no permit has been applied for by [petitioner].” J.A.

3-4.

The trial court found that at the time of purchase,

there were no restrictions imposed by the State,

county, or town on use of the lots for single-family

residences and that the 1988 Act prevented that use.

Pet. App. 36. The court determined that the Act “de-

prive[d] Lucas of any reasonable economic use of the

lots” and rendered them “valueless,” and found a

taking on that basis. Jd. at 37, 38, 40. The court

awarded petitioner $1,170,000 in compensation, rep-

resenting the fair market value of the lots on the date

the 1988 Act became effective. Jd. at 40.

4, A sharply divided South Carolina Supreme Court

reversed, holding that no taking resulted from the

1988 Act’s effect on petitioner’s lots. Pet. App. 1-32.

It observed that although regulatory-taking questions

are often complex, the appeal here presented a ‘“rela-

tively straightforward issue’: whether petitioner was

correct in arguing that “if he is deprived of ‘all eco-

nomically viable use’ of his property, he must te com-

pensated for it even if the regulation depriving him

of such is a use-restriction regulation enacted to pre-

vent serious public harm.” Jd. at 2-3. The court took

petitioner to have conceded the validity of the Legis-

lature’s findings and that the Act “is properly and

validly designed to preserve the extremely valuable

resource which is South Carolina’s beaches.” Id. at

4. As a result, it reasoned, petitioner also conceded

that construction “contributes to the erosion and de-

struction of this public resource” and that “‘discour-

aging new construction in close proximity to the

heach lune area is necessary to prevent a great pub-

lic harm.” /d. at 8. The court also noted that peti-

tioner did not ‘‘contend that the setback requirements

affecting him are unreasonable or disproportionate

to the goal of preventing the specified harms.” /d.

at 15.

Against this background, the court rejected peti-

tioner’s contention that he is entitled to compensa-

tion, “regardless of any other consideration.” Pet.

App. 9; see id. at 9-17. It stated that “a taking has

not been found when the regulation exists to prevent

serious public harm,” id. at 10, and explained this

result on “ ‘the simple theory that since no individual

has a right to use his property so as to create a nui-

sance or otherwise harm others, the State has not

“taken” anything when it asserts its power to enjoin

the nuisance-like activity.’ ” /bid. (quoting Keystone

Bituminous Coal Ass’n vy. DeBenedictis, 480 U.S. 470,

491 n.20 (1987)). Here, the court concluded, peti-

tioner’s failure to attack the legislative findings “that

new construction would cause serious public harm

* * * amounts to a concession that the Mugler ‘nui-

sance-type exception’ applies.” Pet. App. 12 (refer-

ring to Mugler v. Kansas, 123 U.S. 623 (1887) ).

The two dissenting Justices acknowledged the Mug-

ler decision and agreed that it precluded the finding

of a taking if the statute is necessary for the public’s

health, safety, and welfare, “regardless of the extent

of loss suffered by the property owner.” Pet. App.

20; see id. at 20-23. However, the dissenters believed

that the 1988 Act is “not subject to the Mugler analy-

sis” because it does not have as its primary purpose

the prevention of a nuisance or comparable harms,

but instead confers a benefit on the State by creating

a habitat for flora and fauna and a place of natural

beauty, and by “providing a barrier and buffer from

high tides, storm surge, hurricanes and normal ero-

sion.” Id. at 27. The dissenting Justices would have

found a taking on the basis of the trial court’s find-

ing that the lots lack fair market value and econom-

ically viable use. Jd. at 29-31. They then would have

remanded to the Council to allow petitioner to apply

for relief under the “special permit” provisions added

by the 1990 amendments to the 1988 Act (see pages

8-10, infra) and for an award of compensation if the

Council did not grant him one. Pet. App. 31 (citing

§ 48-39-290(D)) (Supp. 1990).

SUMMARY OF ARGUMENT

1. There is no present basis for finding a perma-

nent taking, in view of petitioner’s ability to apply

for a special permit under the 1990 amendments.

Even if petitioner is granted a special permit, how-

ever, he may still have a temporary taking claim for

the period prior to the institution of the special per-

mit procedure. This Court need not reach that claim

in the first instance, but may instead vacate the judg-

ment below and remand to allow the state courts to

consider the viability and validity of any such claim.

2. Government has the established right to pre-

vent certain noxious uses of property that cause

serious harm to others without compensating the

owner of the offending property, even if the prop-

erty has substantially diminished economic value in

the absence of the prohibited use. Some situations

involving total destruction of property or substantial

reduction of its value (e.g., destruction of diseased

food, condemnation of an unsafe building, or a pro-

hibition against building on an unsafe site) do not

require compensation. More generaily, regulatory

measures that substantially further the public inter-

est in preventing established nuisance-type activities

or serious harm to the public health or safety may

not require compensation. That ‘‘nuisance exception”

was well established at the time of the framing and

ratification of the Bill of Rights, and is firmly rooted

in Mugler vy. Kansas, 123 U.S. 623 (1887), and nu-

merous other decisions, as well as principles of prop-

erty rights on which those decisions rest.

The scope of this category of measures designed to

prevent an established nuisance or protect the public

health and safety, however, is by no means cotermin-

ous with the full range of a State’s police powers.

It is instead limited by the principles from which it

springs: such measures must in fact respond to seri-

ous harms to public health and safety that are sub-

stantial in nature, degree, proximity, and context.

The South Carolina Supreme Court did not adequately

consider whether the restrictions imposed on petition-

er’s lots meet this standard. That inquiry is par-

ticularly important here, where petitioner’s two lots

are in a highly developed area, the State’s own recent

amendments contemplate building in some circum-

stances, and petitioner seeks to engage in a normally

unobjectionable use—building single-family residences

next to other single-family residences. These factors

combine to cast considerable doubt on whether the

regulatory regime erected by South Carolina in 1988

is properly viewed as directed at a nuisance or threat

to safety. A legislature’s routine exercise of the

police power may not be brought within the “nui-

sance exception” to normal application of takings

analysis simply by incantation of the words “health

and safety”; such an approach would render the Just

Compensation Clause a hollow guarantee.

3. If a statute does not fall within the narrow

category of laws designed to abate a nuisance or

similar public health and safety threat, whether it

amounts to a taking requires a careful assessment of

the three factors the Court has identified in its regu-

latory-takings decisions: the regulation’s economic

impact, the character of the governmental action, and

the extent to which it interferes with reasonable, in-

vestment-backed expectations.

ARGUMENT

I. THIS CASE SHOULD BE CONSIDERED IN LIGHT

OF THE SPECIAL PERMIT PROVISIONS EN-

ACTED BY THE 1999 AMENDMENTS TO THE 1988

BEACHFRONT MANAGEMENT ACT

There no ionger is any live claim of a permanent

taking in this case. The trial court found that the

1988 Beachfront Management Act resulted in a per-

manent taking of petitioner’s lots because it entirely

prevented him from building houses on them, render-

ing them valueless. Pet. App. 37, 40. As the dissent-

ing Justices in the South Carolina Supreme Court

pointed out (id. at 31), however, the 1990 amend-

ments to that Act now authorize the Coastal Council

to issue a “special permit” to build or rebuild a struc-

ture (other than an erosion-control device) seaward

of the baseline, if (1) the structure would not be on

the active beach or a primary oceanfront dune, (2)

the permittee agrees to remove the structure should

erosion occur to the extent that the structure becomes

situated on the active beach (see § 48-39-270(13)

(Supp. 1990)), and (3) the use would not be detri-

mental to the public health, safety, or welfare.

§ 48-39-290(D) (Supp. 1990). Petitioner has not

sought a special permit under this provision. See Br.

in Opp. 5.

This Court has repeatedly admonished that a prop-

erty owner has no ripe and justiciable claim for a

regulatory taking until he has secured at least a final

administrative determination of whether and how

the regulatory statute will be applied to the prop-

erty at issue. United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126-127 (1985). This

rule is “compelled by the very nature of the inquiry

required by the Just Compensation Clause,” because

the factors applied in deciding a taking 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, 473

U.S. 172, 190, 191 (1985). See MacDonald, Sommer

& Frates vy. County of Yolo, 477 U.S. 340, 348 (1986)

(“A court cannot determine whether a regulation

has gone ‘too far’ unless it knows how far the regu-

lation goes.”). This requirement defines the point at

which a taking claim accrues; identifies precisely

what the landowner wants to do with his property

and why he believes that the use would not be harm-

ful; establishes the extent to which the agency has

applied the regulatory measure to defeat the proposed

use; and enables the agency to furnish particularized

reasons to support its action. The issue of whether a

permanent taking has occurred simply cannot be ad-

dressed until the applicability of the 1990 amend-

ment procedure to petitioner’s lots is clarified.

There remains, of course, the question whether a

temporary taking occurred between passage of the

1988 Act and the 1990 amendments. This quite dis-

tinct issue of a temporary taking was not addressed

by either court below. In fact, although the Council

stipulated at trial (in connection with the permanent

taking claim) that an application for a permit to

build a home would have been denied under the 1988

Act, it expressly “reserve[d] as an argument con-

cerning temporary damages that no permit has been

applied for by [petitioner].” J.A. 3-4.

Thus, the Council apparently has preserved the

position that no temporary taking can be found under

its regulatory scheme unless the owner has applied

for and been denied a permit. See also § 48-39-180.

This ripeness argument, and other aspects of any

temporary taking claim (including whether petitioner

was deprived of any existing or planned use of the

property during the relevant period), should be re-

solved by the state courts in the first instance. Al-

though the South Carolina Supreme Court declined

to remand in light of the 1990 amendments (Pet.

Reply Br. 3; see Pet. App. 17 n.8), this Court

might chocse to vacate the judgment below and re-

mand for further consideration in light of those

amendments—especially in view of possible threshold

impediments to a temporary taking claim, the narrow

focus of petitioner’s argument to date, and the failure

by the courts below fully to consider the relevant

aspects of the taking issue.

II. A LIMITED CATEGORY OF REGULATORY MEAS-

URES DESIGNED TO PREVENT NUISANCES OR

OTHER SERIOUS HARMS TO PUBLIC HEALTH

OR SAFETY DO NOT CONSTITUTE A TAKING

EVEN IF THE VALUE OF AFFECTED PROPERTY

IS SUBSTANTIALLY DIMINISHED

The Just Compensation Clause of the Fifth Amend-

ment affords vital protection to individual liberty by

protecting private property rights against invasion

by the government. At the same time, the govern-

ment has the right to abate nuisances and prevent

harm to public health and safety without incurring

an obligation to compensate those whose uses are

affected, and ownership of private property has never

been understood to include the right to engage in

noxious uses harmful to public health and safety.

The tension between these principles is especially

acute where, as the trial court found here under the

1988 Act, a governmental action has a dramatic eco-

nomic impact on a particular parcel of property.

Accordingly, the category of situations that fall within

the government’s authority to abate nuisance-type

activities must be carefully circumscribed so as not

to eviscerate the protections of the Just Compensa-

tion Clause.

The proper accommodation lies, we submit, in the

roots of the Mugler principle itself, which recognizes

the established need of the government to respond to

certain noxious uses of property that affect the per-

sons and property of others, as well as similar actions

that threaten identified harm to public health and

safety. To justify a finding of no taking on the

Mugler principle alone, the regulatory measure must

substantially further an established nuisance-preven-

tion or public health and safety purpose, in terms of

the nature, degree, proximity, and context of the

harm concerned. Such measures plainly do not extend

to embrace the full range of a State’s police powers,

and when government engages in legitimate regula-

tion that is not properly characterized as prevention

of such established nuisance-type harms, it may not

rely on the Mugler principle to immunize itself from

compensation demands.

1. It is clear as an initial matter that there exists

some category of governmental authority that may

result in the substantial diminution of property val-

ues, and yet not require payment of compensation as

a condition to its lawful exercise. For example, the

government may seize and destroy unwholesome foods

and unsafe drugs, and may destroy goods to prevent

the spread of disease.’ Similarly, under the Controlled

Substances Act, 21 U.S.C. 801 et seq., it may be

lawful to manufacture, possess and sell a certain drug

one day and a felony to do so the next (see, e.g.,

Touby vy. United States, 111 S. Ct. 1752 (1991)),

with the result that existing stocks are rendered

valueless. The government’s ability to protect the

public through such measures is historically well es-

tablished and thus has not been conditioned upon pay-

ment of compensation to those who would inflict the

harm.’

* See, e.g., Federal Food, Drug and Cosmetic Act, 21 U.S.C.

301 et seq.; Federal Meat Inspection Act, 21 U.S.C. 601 et seq.;

Poultry Products Inspection Act, 21 U.S.C. 451 et seq.; 21

U.S.C. 350a (prohibiting sale of adulterated infant formula) ;

see also Federal Insecticide, Fungicide, and Rodenticide Act,

7 U.S.C. 136 et seq.

5 See 4 W. Blackstone, Commentaries 162 (1769) (statutes

prohibiting sale of unwholesome food) ; Russell v. Mayor, etc..,

of New York, 2 Denio 461, 476 (1845) (New York statute

passcd during cholera epidemic authorizing destruction of

The same principle also applies to real property.

Thus, the government may condemn a residence or

other building that is unsafe for habitation, even

though the value of the building (in itself a distinct

species of property) will be entirely destroyed, or

may bar construction in an unsafe manner (e.g., by

requiring compliance with a building code), even

where compliance would render it economically un-

viable to proceed. Restrictions against siting a resi-

dence or other building on a steep slope or other un-

safe location stand on an equal footing. In other

circumstances, affirmative obligations imposed on the

owner to protect public health and safety may also

have a substantial effect on the value of the prop-

erty. See Midlantic Nat’l Bank v. New Jersey Dep’t

of Environmental Protection, 474 U.S. 494, 502, 509

& n.2 (1986). Another familiar example, deeply

rooted in history, is the right of the government (with-

out compensating the owner) to tear down a struc-

“an unlimited amount of the property of its citizens, for the

purpose of preventing the spread of the disease, without

imposing any obligation or subjecting [the agents] to any

responsibility whatever’); Gilman v. Philadelphia, 70 U.S.

(3 Wall.) 713, 730-731 (1865) (“a bale of goods, * * * laden

with infection, may be seized under ‘health laws,’ and if it

cannot be purged of its poison, may be committed to the

flames”); Sligh v. Kirkwood, 237 U.S. 52, 59-60 (1915)

(such items are not “legitimate subjects of trade or com-

merce” and “may be rightly outlawed as intrinsically and

directly the immediate sources and causes of destruction to

human health and life’); Empire Kosher Poultry, Inc. V.

Hallowell, 816 F.2d 907 (3d Cir. 1987) (no taking in con-

text of poultry quarantine) ; but cf. Yancey v. United States,

915 F.2d 1534 (Fed. Cir. 1990) ; but see McDougal v. County

of Imperial, 942 F.2d 668, 675-680 (9th Cir. 1991) (remand-

ing for inquiry into substantiality of public interest under-

lying floodway ordinance, as well as private interest affected).

ture in order to create a firebreak. See Respublica

v. Sparhawk, 1 U.S. (1 Dall.) 357, 362 (Pa. 1788)

(“Houses may be razed, to prevent the spreading

of fire, because for the public good.”) ; Stone v. Mayor

& Aldermen, 25 Wend. 157, 161 (N.Y. 1840) (quot-

ing 2 Kent’s Commentaries 339); id. at 173-174; *

Bowditch vy. Boston, 101 U.S. 16, 18-19 (1879);°

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-

416 (1922); see also United States vy. Caltex, Inc.,

344 U.S. 149, 154 (1952).

2. The roots of the foregoing principles extend

deep into the Court’s precedents and historical defi-

nitions of private property rights, and into the cor-

relative power of the government to abate nuisances

and protect public health and safety from serious

harm.® This backdrop is important because historical

‘See also 25 Wend. at 176 (citing Mouse’s Case, 12 Coke

Rep. 62 (merchandise thrown overboard to save passengers) ).

5“At the common law every one had the right to destroy

real and personal property, in cases of actual necessity, to

prevent the spreading of a fire, and there was no responsi-

bility on the part of such destroyer, and no remedy for

the owner. * * * There are many other cases besides that

of fire,—-sume of them involving the destruction of life it-

self,—where the same rule is applied. * * * In these cases

the common law adopts the principle of the natural law, and

finds the right and the justification in the same imperative

necessity.” 101 U.S. at 18-19.

* See The License Cases, 46 U.S. (5 How.) 504, 589 (1847)

(opinion of McLean, J.) :

The acknowledged police power of a State extends

often to the destruction of property. A nuisance may

be abated. * * * It is a power essential to self-preser-

vation, and exists, necessarily, in every organized

community.

understandings give content to the Bill of Rights,

including the Fifth Amendment (see, e.g., Griffin v.

United States, No. 90-6352 (Dec. 3, 1991), slip op.

3-5), and because those understandings must be

taken into account in assessing what the Framers

understood the private property they were protecting

from uncompensated takings to include. If the use

of property in a particular way was not part of

the owner’s “bundle” at the time he acquired the prop-

erty, he cannot claim the government has “taken”

from him the right to that use.

The necessary interrelationship between property

rights and the correlative power of the government

to protect the person and property of others (and the

public interest) first received extensive treatment by

this Court in Mugler v. Kansas, 123 U.S. 623 (1887).’

But the principles applied in Mugler did not originate

in that case; they find their roots in the law of nui-

sance in England * and were already widely accepted

in the law of the States pertaining to property rights

7See also 128 U.S. at 666-667, discussing Fertilizing Co.

Vv. Hyde Park, 97 U.S. 659, 667 (1878), which sustained an

ordinance prohibiting the manufacture of fertilizer, even

though it “operated to destroy the business of the company,

and seriously to impair the value of its property,” because

it had become a nuisance. 123 U.S. at 667. The Court con-

tinued: “ ‘That power belonged to the States when the Fed-

eral Constitution was adopted. They did not surrender it,

and they all have it now. * * * It rests upon the funda-

mental principle that every one shall so use his own as not

to wrong and injure another. To regulate and abate nuisances

is one of its ordinary functions.’” Jbid. (quoting 97 U.S.

at 667).

®3 W. Blackstone, Commentaries 216-218 (1768); 4 id. at

168; Restatement (Second) of Torts § 821B, comment a; id.

$ 821D, comment a (1979).

and constitutional protections.’ For example, in Stuy-

vesant v. Mayor &c. of New York, 7 Cow. 588 (1827),

the New York Supreme Court sustained an ordi-

nance that barred interment in certain parts of the

City. Accord, Laurel Hill Cemetery v. San Francisco,

216 U.S. 358, 366 (1910); Appeal of Kincaid, 66 Pa.

411, 423-424 (1870). In addition, the Court in Mug-

ler relied (123 U.S. at 665) on the frequently cited

decision of the Supreme Judicial Court of Massa-

chusetts in Commonwealth v. Alger, 61 Mass. 53

(1851), which involved an ordinance barring con-

struction of wharves beyond a harbor line and de-

claring such wharves to be a nuisance. Similarly,

and instructive here, Commonwealth v. Tewksbury,

52 Mass. 55 (1846), sustained, as applied to the

owner of beach property, an ordinance barring re-

moval of sand or gravel from a beach. Because prop-

erty “is held under the implied obligation that the

owner’s use of it shall not be injurious to the com-

munity” (Mugler, 123 U.S. at 665), the power

of the government to adopt such measures continues

to exist—and continues to define and limit the under-

lving property right—even if it remains unexercised.

So long as the government regulation does not depart

from the common law origins of nuisance, there is no

taking.”

® See, e.g., People v. Hawley, 3 Mich. 330, 342 (1854);

Pumpelly Vv. Greenbay Co., 80 U.S. (13 Wall.) 166, 177-178

(1872).

See also Stuyvesant v. Mayor &c. of New York, 7 Cow. at

695; Commonwealth v. Alger, 61 Mass. at 84-85.

'' Nor have this Court’s post-Mugler decisions suggested

any departure from Mugler’s fundamental principles. See

MTadacheck Vv. Sebastian, 239 U.S. 394 (1915) (no taking

where law forbade operating brickyard in residential! area) ;

Reinman Vv. City of Little Rock, 237 U.S. 171 (1915) (no

Ill. THE CATEGORY OF MEASURES THAT DO NOT

CONSTITUTE A TAKING SOLELY BECAUSE

THEY ARE DESIGNED TO PREVENT NUISANCES

AND OTHER HARMFUL USES OF PROPERTY

MUST BE LIMITED BY REFERENCE TO THE

NATURE, DEGREE, PROXIMITY AND CONTEXT

OF THE HARM

For the reasons stated in Point II, we agree with

the view—endorsed by all Justices of the South Caro-

lina Supreme Court— that there is a category, prop-

erly defined, of regulatory measures designed to pre-

vent nuisances or harm to public health and safety

that do not constitute a taking, even if, in certain

circumstances, they substantially diminish the value

of the affected property. But it is precisely because

of this potential impact that the category of cases

falling under the Mugler principle must be carefully

circumscribed according to the underlying exigencies

that justify it. That is esp>_ially so as regards real

property, which typically is not subject to the sort of

pervasive regulation—or the potential for such

regulation—that often attends ordinary commerce

in goods and services. It is on the application of

these principles here that we disagree with the South

Carolina Supreme Court.

1. In the first place, as this Court has made clear,

the category of regulatory measures whose applica-

taking where law forbade operating livery stable in down-

town area); Miller v. Schoene, 276 U.S. 272 (1928) (state

required destruction of cedar trees to protect apple trees

from cedar rust disease, where apples were an economically

important crop) ; Goldblatt v. Town of Hempstead, 369 U.S.

590 (1962) (no taking where law forbade e::cavation of sand

and gravel below water line to protect public water supply) ;

see also Keystone Bituminous Coal Ass'n V. DeBenedictis,

480 U.S. 470, 488-492 (1987).

tion may be justified (without payment of compen-

sation) solely on the Mugler rationale “ ‘is not co-

terminous with the police power itself.’” Keystone,

480 U.S. at 491 n.20 (quoting Penn Central Transp.

Co. v. New York City, 438 U.S. 104, 145 (1978)

(Rehnquist, J., dissenting) ); see also 480 U.S. at

512 (Rehnquist, C.J., dissenting). The general rule

is that the takings implications of a regulatory

measure must be analvzed under the Court’s three-

factor test, under which the purpose of the regulation

is not dispositive. See pages 25-26, infra. Otherwise,

the police power would swallow the Just Compensa-

tion Clause.

The Mugler principle, rather, is confined to meas-

ures that are designed to protect public health and

safety frum serious harm or to prevent or abate a

nuisance-type activity. It is essential, moreover, that

the tvpe of nuisance measures falling within this

category be defined in an objective and non-manipula-

ble manner, for otherwise a legislature could circum-

vent the Just Compensation Clause in the regulatory

context simply by designating as a nuisance whatever

use of property it wished to restrict. Thus, although

the Court has noted that legislatures are not strictly

limited by common-law categories in determining

what constitutes a nuisance for these purposes, Miller

v. Schoene, 276 U.S. at 280, the common law origins

of the rule should inform a court’s review of a statute

to determine whether it falls under the Mugler prin-

ciple. Accordingly, before concluding that Mugler

applies, a reviewing court must determine that the

statute is rooted in the principle that individuals may

not make a “noxious use of their property, to inflict

injury upon the community.” Mugler, 123 U.S. at

669. A landowner could not reasonably have ex-

pected to put his property to such a use. By contrast,

regulatory measures (such as a typical zoning ordi-

nance) that restrict one person’s use of his property

in order to confer a benefit on adjacent property

owners or the public at large do not constitute the

abatement or prevention of a nuisance for purposes

of the A/Jugler principle. Compare 3 W. Blackstone,

supra, at 217 (“But depriving one of a mere matter

of pleasure, as of a fine prospect, by building a wall,

or the like: this, as it abridges nothing really con-

venient or necessary, is no injury to the sufferer, and

is therefore not an actionable nuisance.”). Such reg-

ulatory efforts must be analyzed under the usual

three-factor test to determine whether the government

must compensate affected landowners.

The court below purported to recognize this point,

stressing that it was not holding that the mere fact

that the State acted pursuant to its police power

ended the inquiry, but rather that no taking occurs

when a State “acts to prevent a serious public harm.”

Pet. App. 11. The difficulty is that the legislative

findings and policies in the 1988 Act on which the

court exclusively relied in rejecting petitioner’s tak-

ing claim demonstrate that the Act furthers a num-

ber of ultimate purposes, only some of which might

fall within the nuisance or safety rationale. Compare

Keystone, 480 U.S. at 512-513 (Rehnquist, C.J.,

(dissenting). The Act recites, for example, that the

beach dune system it seeks to protect provides a basis

for the State’s tourism industry (which contributes

substantially to the State’s economy and tax base)

and a natural environment for the well-being of its

citizens, and that it is in the public interest to pro-

mote increased public access to the State’s beaches.

S.C. Code Ann, § 48-39-250(1)(b) and (d), (8)

(Supp. 1990); see also § 48-39-260(1)(b) and (c),

(6) (Supp. 1990). Achievement of these goals may

benefit the people and economy of the State, but

they plainly do not, in themselves, bring this case

under the Mugler doctrine. The nuisance exception

. to the usual regulatory-taking analysis is premised on

the prevention of harmful or dangerous uses of prop-

erty—in the nature of nuisance—and not on the

conferral of benefits on the public at large or owners

of adjacent property. By contrast, other stated pur-

poses of the Act—such as protection of life and

property—are of the sort that, in proper circum-

stances, do fall within the Mugler doctrine. See

$$ 48-39-250(1) (a) and (d), (3), 48-39-260(1) (a),

(3), and (4) (Supp. 1990); see also 16 U.S.C.

1452(2) and 1456b(a) (2) (CZMA provisions stating

comparable goals).

For these reasons, a more searching inquiry was

required at the threshold to determine which of the

purposes of the Act were actually implicated in appli-

cation of the building restrictions to petitioner’s lots,

and whether those purposes are of a sort that fall

within the Mugler category of nuisance-prevention or

efforts to protect public health and safety from serious

harm. In cases where a statute serves a variety of

collateral purposes, there is the potential that it goes

“beyond the necessities of the case,” Chicago, B. &

Q. Ry. v. United States, 200 U.S. 561, 593 (1906),

and scrutiny of the fit between means and ends is

_ necessary to ensure that the affected property owner

is not being asked to bear “more than his just share

of the burdens of government.” Monongahela Naviqa-

tion Co. v. United States, 148 U.S. 312, 325 (1893).

2. Furthermore, a regulatory statute is not im-

mune from a lifth Amendment claim merely because

it bears some plausible nexus to the prevention of

harm to individuals, property, or the public at large.

If that were enough, the established principle that a

house may be razed to prevent the spread of a fire

(see pages 13-14, supra) could be extended to permit

the razing of every other house in an existing row,

to prevent the spread of a fire if one should occur.

See Keystone, 480 U.S. at 513 (Rehnquist, C.J., dis-

senting) (“nearly every action the government takes

is intended to secure for the public an extra measure

of ‘health, safety, and welfare’”’). Thus, the founda-

tion of the Mugler doctrine requires that, in order

for the doctrine to apply, “a statute purporting to

have been enacted to protect the public health, the

public morals, or the public safety” must actually

have a “real and substantial relation” to those ob-

jects. Mugler, 123 U.S. at 661; Chicago, B. & Q. Ry.

v. United States, 200 U.S. at 593 (“real” and “sub-

stantial” relation); ef. Nollan v. California Coastal

Comm'n, 483 U.S. 825, 834-835 (1987) (condition

must “substantially advance” the state interest).

At least where its application to a particular parcel

of real property precludes previously unrestricted

uses, a determination of whether the requisite “real

and substantial relation” exists requires an assess-

ment of the degree of the harm to which the statute

is addressed '-—and, where the harm will occur (if

at all) only in the future, its likelihood and proximity.

' This principle is an established element of modern tort

law as well. See Restatement (Second) of Torts § 821B

(1979) (a public nuisance is an “unreasonable” interference

with a right common to the general public, and a relevant

circumstance in making that determination is whether the

conduct involves a “significant interference” with, inter alia,

public health or safety) ; id. § 821F (liability for a nuisance

only to those to whom it causes “significant harm’’) ; id. § 826

(invasion of another’s use and enjoyment of land is unreason-

In this case, the 1988 Act prohibited new construc-

tion of any but temporary buildings seaward of a

baseline fixed by the Coastal Council. In an erosion

zone such as that in which the Wild Dunes develop-

ment is located, the baseline was to be fixed at the

landward-most point of erosion during the past 40

years, unless the available data indicated that the

shoreline would be unlikely to return to its former

position. See pages 3-4, supra. Application of this

statutory formula placed the baseline on the road

landward of petitioner’s lots, and petitioner has not

challenged that determination. T.R. 40. In addition,

the Council introduced evidence at trial concerning

the factual premises for the location of the baseline,

recent episodes of erosion in the vicinity, and the

possibility that erosion might occur to the extent that

petitioner’s premises would be situated on active

beach. T.R. 65-88, 99-104. However, neither the trial

court nor the South Carolina Supreme Court dis-

cussed the statutory requirements for drawing the

baseline, the relationship of those requirements to

purposes of the Act that might fall within the cate-

gory of nuisance-prevention or public health and

safety measures covered by the Mugler principle, the

extent (if any) to which those purposes were ad-

dressed by the location of the baseline as it affected

petitioner’s lots, or the degree, likelihood, or prox-

able if “the gravity of the harm outweighs the utility of

the actor’s conduct” or “the harm caused by the conduct

is serious and the financial burden of compensating for this

and similar harm to others would not make the continuation

of the conduct not feasible’); 1 F. Harper, F. James & O.

Gray, The Law of Torts § 1.23, at 81 (1986) (a “requirement

common to all private nuisance cases is that the interference

must be substantial’).

imity of the identifiable harms to which the Act is

addressed.

3. In addition, an important element of the nui-

sance justification for application of the Mugler prin-

ciple is the context in which the restriction applies,

including the normal uses of property in the vicinity.

This important element serves to protect the reason-

able expectations of the property owner. As this

Court said in Euclid v. Ambler Realty Co., 272 U.S.

365, 388 (1926):

[T]he question whether the power exists to for-

bid the erection of a building of a particular kind

or for a particular use, like the question whether

a particular thing is a nuisance, is to be deter-

mined, not by an abstract consideration of the

building or of the thing considered apart, but by

considering it in connection with the circum-

stances and the locality.

See also Commonwealth v. Alger, 61 Mass. at 8&8;

Restatement (Second) of Torts § 831 (1979).

It is as an initial matter strange to characterize

the building of a single-family residence as a “nui-

sance.”’ Here, houses have been built adjacent to pe-

titioner’s lots. It is stranger still to characterize as

a “nuisance” the building of a house on a lot in a

platted subdivision along a beach where other houses

are already located.’ In this respect, this case ap-

pears to be the mirror image of Hadacheck v. Sebas-

tian, 239 U.S. 394 (1915), and Reinman vy. City of

'’ The owners of existing houses were affected by the 1988

Act to some extent, however, because it prohibited recon-

~ struction of homes that might thereafter be destroyed by fire

or natural causes. § 48-39-290(A) (Supp. 1990) (Pet. App.

116); see Esposito Vv. South Carolina Coastal Comm’n, 939

F.2d 165 (4th Cir. 1991).

Little Rock, 237 U.S. 171 (1915), where the use was

prohibited because it was inconsistent with surround-

ing uses. Furthermore, where a statute uniquely pro-

hibits a use of property that is permitted on adjacent

parcels, the purposes of the Just Compensation Clause

are directly implicated, because the owner is being

asked to “surrender[] to the public something more

and different from that which is exacted from other

members of the public.” Monongahela Navigation

Co. v. United States, 148 U.S. 312, 325 (1893). See

also Nollan, 483 U.S. at 835-836 n.4; ef. Common-

wealth vy. Alger, 61 Mass. at 102 (“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.’’).

4, Finally, in order for a taking claim to be re-

jected on the basis of the Mugler principle alone, a

measure designed to abate or prevent a nuisance-type

activity in the present context should, where feasible,

be tailored to address the identified harm to the per-

son or property of others (or to public health and

safety), while minimizing the impact on the affected

property. Cf. 1 F. Harper, F. James & O. Gray,

supra, § 1.30, at 126-127; Chenango Bridge Co. v.

Page, 83 N.Y. 178 (1880); Babcock v. City of Buff-

alo, 56 N.Y. 268, 272-273 (1874). Here, the 1990

amendments demonstrate that such tailoring was

feasible, for they provide for issuance of a special per-

mit to build a house seaward of the baseline, subject

to the condition that the structure be removed if ero-

sion occurs to the point that the structure becomes

situated on active beach—at which point the attend-

ant nuisance and safety concerns presumably would

be most directly implicated. For this reason as well,

the case should be remanded for further consideration

of petitioner’s taking claim in light of the 1990

amendments.

5. If the South Carolina Supreme Court concludes

on remand that application of the 1988 Act to peti-

tioner’s lots cannot be justified (without payment of

compensation) on the basis of the Mugler doctrine

alone, it should evaluate the case under the multi-

faceted analysis the Court has brought to bear on the

question whether a taking has occurred in the regula-

tory context. In that setting, ‘no precise rule deter-

mines when property has been taken,” and “the ques-

tion necessarily requires a weighing of private and

public interests.” Agins v. City of Tiburon, 447 U.S.

255, 260-261 (1980); see also Goldblatt v. Town of

Hempstead, 369 U.S. 590, 593-594 (1962); Pennsyl-

vania Coal Co. v. Mahon, 260 U.S. at 416 (taking

issue is “a question of degree—and therefore cannot

be disposed of by general propositions”’ ).

This approach reflects the wide range of govern-

mental actions and resulting impacts upon private

property interests in which the question may arise.

Although the Court has been “unable to develop any

‘set formula’” for this purpose, Penn Central, 438

U.S. at 124, it has identified three factors that are

relevant to the inquiry: (1) “the economic impact

of the regulation on the claimant’; (2) ‘the extent

to which the regulation has interfered with distinct

investment-backed expectations”; and (3) “the char-

acter of the government action.” Jbid.; Connolly v.

PBGC, 475 U.S. 211, 225 (1986) ; Williamson County,

444 U.S. 164, 175 (1979). Although the South Caro-

lina Supreme Court adverted to these factors (Pet.

App. 9), it did not fully consider them, since it dis-

posed of the case in reliance on Mugler. The trial

court focused on the economic impact of the 1988 Act

on petitioner, but did not address the purposes served

by the Act or the extent and reasonableness of peti-

tioner’s investment-backed expectations concerning

his lots. Pet. App. 39-40. These issues are properly

left, as an initial matter, to the state courts on re-

mand.

CONCLUSION

The judgment of the Supreme Court of South Car-

olina should be vacated and the case remanded for

further proceedings.

Respectfully submitted.

JANUARY 1992