Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

a“

No. 91-453 1

SE eS

re

In the wi

Supreme Court of the United States

October Term, 1991 .

DAVID H. LUCAS,

Petitioner,

y

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of South Carolina

BRIEF OF

DEFENDERS OF PROPERTY RIGHTS,

AMERICAN SHEEP INDUSTRIES ASSOCIATION, INC.,

ENVIRONMENTAL CONSERVATION ORGANIZATION,

LAND IMPROVEMENT CONTRACTORS ASSOCIATION, &

OUTDOOR ADVERTISING ASSOCIATION OF AMERICA, INC.

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Nancie G. Marzulla

President and Chief

Legal Counsel

6235 33rd Street, N.W.

Washington, D.C. 20015

(202) 686-4197

Counsel for Amici Curiae

December 31, 1991 DEFENDERS OF PROPERTY

RIGHTS

=

QUESTIONS PRESENTED

Whether a statute which deprives a property owner

of all of the economic value of his land goes too far

and thus will be recognized as a taking?

Whether the Government must bear the burden of

proving a nuisance defense of a taking claim?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................

TABLE OF AUTHORITIES................... i

INTEREST OF AMICI CURIAE ............... 1

STATEMENT OF THE CASE ................. 3

SUMMARY OF ARGUMENT ................. 4

I. A Statute Which Goes Too Far in Regulating

Private Property Will be Recognized as a Taking 5

A. A Statute Which Deprives Property of All

Economic Value Goes Too Far and Will be

Recognized as a Taking ............. 6

B. Lucas Has Been Deprived of All the

Economic Value of His Property ...... 9

II. The Government Bears the Burden of Proving a

Nuisance Defense to a Takings Claim ..... 10

CONCLUSION ....... a 13

e-

-ll-

TABLE OF AUTHORITIES

Page

CASES:

Agins v. City of Tiburon, 447 U.S. 225 (1980) .... 3,4,13

American Savings and Loan Association v.

County of Marin, 653 F.2d 364, (9th Cir. 1981) .... 6

Andrus v. Allard, 44 U.S. 51 (1979) ............. 9

Armstrong v. United States, 364 U.S. 40 (1960) ...... 6

Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) .... 14

First English Evangelical Lutheran Church v.

Los Angeles County, 482 U.S. 304 (1987) ........ 6

Florida Rock Industries, Inc. v. United States,

8 Cl. Ct. 160 (1985) reversed on other grounds,

791 F.2d 893 (Fed. Cir. U.S. 1054 (1987),

on remand, 21 Cl. Ct. 161 (1990) ........ 4,8,10,15

Hodel v. Irving, 481 U.S. 704 (1987) ............. )

Kaiser Aetna v. United States,

ee ASR aKe tees a Ke ee aes 9

Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987) ............ 12

CASES (cont.)

Loretto v. Teleprompter Manhattan CATV Corp.,

Co Se eer ere eee eT 8,9

Loveladies Harbor, Inc. v. United States,

SP Gee i nk wadakeerenincsceses 13

Loveladies Harbor v. United States,

21 Cl. Ct. 153 (1990), appeal filed,

No. 91-5050 (Fed. Cir. argued Nov. 1991) . 4,10,11,15

Miller v. Schoene, 276 U.S. 272 (1928) .......... 13

Monongahela Navigation Co. v. United States,

og 8 Be errr ery Trae eer ee 13

Mugler v. Kansas, 123 U.S. 623 (1887) .......... 12

Nollan v. California Coastal Commission,

ey WA ee COMP oo vs eee ccccectccss ee

Penn Central Transportation Co. v.

New York, 438 U.S. 104 (1978) ........... 6,12,15

Pennell v. City of San Jose, 485 U.S. 1 (1988) ...... 6

Pennsylvania Coal Co. v. Mahon,

ee ee 6,7,8,12

United States v. Causby, 328 U.S. 256 (1945) ....... 8

United States v. Central Eureka Mining Co.,

oe! Se eee Tr ee ere ee 15

CASES (cont.)

Whitney Benefits, Inc. v. United States,

18 Cl. Ct. 394 (1989), modified, 20 Cl. Ct.

324 (1990), aff'd, 926 F.2d 1169 (Fed. Cir.

1991), cert. denied, U.S. (1991) .......... 4,8,10,14

CONSTITUTION:

rn re ce ckeweeeweeeens

-V-

5

No. 91-453

In the

Supreme Court of the United States

October Term, 1991

DAVID H. LUCAS,

Petitioner,

V.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of South Carolina

BRIEF OF

DEFENDERS OF PROPERTY RIGHTS,

AMERICAN SHEEP INDUSTRIES ASSOCIATION, INC.,

ENVIRONMENTAL CONSERVATION ORGANIZATION,

LAND IMPROVEMENT CONTRACTORS ASSOCIATION, &

OUTDOOR ADVERTISING ASSOCIATION OF AMERICA, INC.

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Pursuant to Rule 37.3 of the Rules of this Court, Amici in

Support of Petitioner submit this brief amici curiae. The

amici support reversal of the decision by the Supreme Court

of the State of South Carolina.

INTEREST OF AMICI CURIAE

Defenders of Property Rights is a non-profit, public

interest law foundation whose members are property owners,

users and beneficiaries of the rights protected by traditional

Anglo-American property law. Incorporated under the laws

of the District of Columbia, Defenders of Property Rights is

designed specifically for the purpose of participating in legal

action affecting the public interest and the private property

rights of its membership. Defenders of Property Rights

engages in litigation around the country on behalf of its

membership in defense of property interests protected

against government incursion by the Bill of Rights.

Defenders of Property Rights has devoted a significant

portion of its resources to the litigation of regulatory taking

issues.

American Sheep Industries Association, Inc. is an

organization of 109,000 sheep producers including 47 state

associations and 20 affiliated organizations. The Association

is dedicated to the protection of the rights of property use

and ownership as essential elements in the sheep production

industry.

The Environmental conservation Organization is a national

organization of landowners and landowner associations

working to balance environmental protection with economic

vitality.

Land Improvement contractors Association is a 40-year old

organization of building and construction contractors whose

industry is dramatically impacted by zoning and land use

regulations. The Association has been active at the national

and local levels on behalf of its members in opposing

unnecessary and excessively burdensome restrictions upon

the use of private property.

The Outdoor Advertising Association of America, Inc.

("OAAA\") is a national organization comprised of billboard

and outdoor sign owners. Outdoor advertising is pervasively

regulated through the zoning process and by other

'

to

mechanisms at the national, state and local levels. These

regulations are often confiscatory. OAAA has been active

for many years in the courts, Congress and in state

legislatures in defense of the property rights of its members.

STATEMENT OF THE CASE

This case affords an opportunity to complete the

unfinished business left open by the alternative tests set

forth in Agins v. City of Tiburon, 447 U.S. 225 (1980),+where

this Court stated:

The application of a general zoning law to

particular property effects a taking if the

ordinance does not substantially advance legitimate

state interests, or denies an owner economically

viable use of his land.

Id. at 260. (Citations omitted).

While this Court made clear in Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), that the first half of this

alternative test is satisfied if the governmental action does

not substantially advance the stated government purpose,

lower courts require an equally clear articulation that a

taking will also be recognized where the owner has been

deprived of the economically viable use of his land.

Despite the court’s repeated statement of the alternative

test, lower courts have been reluctant to find a taking solely

on the basis of deprivation of economic viability. As a

Since Agins did not involve a total deprivation of all economic

value, the issue was not before the Court at that time.

'

‘yd

‘

result, courts have tended to indulge in a “belt and

suspenders” approach to taking analyses even when the

diminution in value has been complete, analyzing at length

other factors which would seem to be extraneous under the

plain language of the second half of the alternative test of

Agins #

The South Carolina Supreme Court clearly did not believe

that this Court meant what it said in Agins, and thus refused

to find a taking despite the deprivation of all economic

value. This case squarely poses an instance in which a

regulation deprives the property of all economic value

requiring that this Court ascertain the vitality of the rule

which it enunciated in Agins.

SUMMARY OF ARGUMENT

~ The Fifth Amendment to the United States Constitution,

as applied to South Carolina through the Fourteenth

Amendment, demands that Petitioners receive just

compensation for the taking of their property under the

South Carolina Coastal Council's beach management

regulatory scheme. By statutorily mandating setback lines

which prohibit the construction of any permanent structure

such as a house or other habitable dwelling, South Carolina

has deprived Petitioner of 100 percent of the economically

2 See, e.g., Loveladies Harbor v. United States, 21 Cl. Ct. 153

(1990), appeal filed, No. 91-5050 (Fed. Cir. argued Nov. 1991);

Florida Rock Industries, Inc. v. United States, 8 Cl. Ct. 160, 179

(1985) reversed on other grounds, 791 F.2d 893 (Fed. Cir. U.S. 1054

(1987), on remand, 21 Cl. Ct. 161 (1990); and Whitney Benefits,

Inc. v. United States, 18 Cl. Ct. 394 (1989), modified, 20 Cl. Ct. 324

(1990), aff'd, 926 F.2d 1169 (Fed. Cir. 1991), cert. denied, U.S.

(1991).

viable use of the property. A statute which results in the

total deprivation of all the economic value of private

property must be recognized as a taking in violation of the

Fifth Amendment. Any holding short of that eviscerates the

plain meaning of this constitutional guarantee.

Courts must look beyond broad legislative pronouncements

determining whether a taking has occurred. To sustain a

holding that a proposed use of property constitutes a

nuisance (and therefore as a defense to a taking claim)

there must be proof that actual public harm would be

-inflicted by that use. In this instance, the lower court relied

only upon the legislative findings supporting the statute and,

therefore, failed to ascertain whether Lucas’ proposed use

would indeed constitute a public nuisance.

I. A Statute Which Goes Too Far in Regulating Private

Property Will be Recognized as a Taking

The United States Constitution limits the exercise of South

Carolina’s regulatory authority. The United States

Constitution provides that private property shall not be

"taken for public use, without just compensation.” U.S.

CONST. amend. V. The Taking Clause of the Constitution

does not forbid the exercise of otherwise legitimate

governmental authority. Instead, it places a condition upon

the exercise of that authority, requiring that just

compensation be paid when the governmental action

amounts to a taking.

"This basic understanding of the [Fifth] Amendment makes

clear that it is designed not to limit the governmental

interference with property rights per se, but to secure

compensation in the event of otherwise proper interference

amounting to a taking.” First English Evangelical Lutheran

Church v. Los Angeles County, 482 U.S. 304, 315 (1987).

This constraint upon the exercise of governmental power is

a guarantee "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 v. United States, 364 U.S. 40, 49 (1960); see also

Penn Central Transportation Co. v. New York, 438 U.S. 104

(1978).*

The right to just compensation does not depend upon the

importance of the public policy underlying the regulation

which results in a taking. "A strong public desire to improve

the public condition is not enough to warrant achieving the

desire by a shorter cut than the constitutional way of paying

for the change.” Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 416 (1922).*

* American Savings and Loan Association v. County of Marin, 653

F.2d 364, 372 n.1 (9th Cir. 1981) ("Courts faced with particular

challenges to zoning measures must nonetheless ask whether those

measures exact such a disproportionate sacrifice from individual

property holders relative to their peers and to their expectations

that the affected individuals may be seen as having been treated

solely as a means in a process of social engineering.”); Pennell v.

City of San Jose, 485 U.S. 1, 9 (1988). (The Fifth Amendment’s just

compensation provision is designed to bar the government from

foisting a disproportionate burden upon a particular group of

individuals for a harm which is public and whose burden should be

shared by the public as a whole.)

* In Nollan v. California Coastal Commission, 483 U.S. 825 (1987),

the U.S. Supreme Court invalidated a building permit condition

which would have allowed public access over the landowners’ private

(continued... )

Of course, not every exercise of regulatory authority

constitutes a taking of private property. Whether a taking

has occurred depends upon the extent to which the

regulation impacts the owners’ constitutionally protected

property rights. "The general rule at least is, that while

property may be regulated to a certain extent, if regulation

goes too far it will be recognized as a taking.” Pennsylvania

Coal at 415.

A. A Statute Which Deprives Property of All Economic

Value Goes Too Far and Will be Recognized as a

Taking

The plain meaning of the Takings Clause is that the

government may not deprive the owner of the entire value

of his property while withholding compensation. This

principle is fundamenta! to the condemnation process, which

recognizes the government’s right to take part or all of the

owner's private property but ensures that he will receive just

compensation for it. The same principle applies where the

government has taken physical possession of the property,

+ (...continued)

beach, saying:

The Commission may well be right that [public access

to the beach] is a good idea, but that does not

establish that the Nollans (and other coastal residents)

alone can be compelled to contribute to its realization.

Rather, California is free to advance its ‘comprehensive

program,’ if it wishes, by using its power of eminent

domain for this ‘public purpose’. . . but if it wants an

easement across the Nollan’s property, it must pay for

it. Jd. at 841-42.

er

rendering it valueless to the owner. United States v. Causby,

328 U.S. 256, 261 (1945); Loretto v. Teleprompter Manhattan

CATV Coprp., 458 U.S. 419 (1982). And a regulation "goes

too far" when, like condemnation and physical possession, it

empties the property of all value. Whitney Benefits, Inc. v.

United States, 18 Cl. Ct. 394 (1989), modified, 20 Cl. Ct. 324

(1990), aff'd, 926 F.2d 1169 (Fed. Cir. 1991), cert. denied,

U.S. (1991).

A regulation which "gocs too far" will be recognized as an

unconstitutional taking. Pennsylvania Coal v. Mahon, supra.

Certainly a regulation can go no farther than to eliminate

the entire economic value from the property. Indeed, the

market value of a parcel of property is a surrogate for the

bundle of rights which is property ownership. When a

property lacks economic value, the marketplace is affirming

that the bundle of private property rights is empty or has

been destroyed.*

The United States Supreme Court has repeatedly held that

the deprivation of a fundamental property right constitutes a

* Even nominal market value of property is an insufficient basis

to preclude a finding of taking when atl viable economic activity has

been destroyed. "There are invariably speculators willing to gamble

that even the most severe restrictions will eventually be lifted or

modified so as to render the property usable again. If the existence

of such a residual market for the property could defeat a claim for

a regulatory taking, no regulatory taking could ever be proved and

the concept would be rendered meaningless. In fact, when courts

have determined that property has been rendered unfit for

economically viable activity, they have found a Fifth Amendment

taking even though the property obviously continued to have market

value.” Florida Rock Industries, Inc. v. United States, 8 Cl. Ct. 160,

167 (1985).

taking. Describing the incidents of property ownership as a

"bundle of sticks," the Court has cautioned that "the

destruction of one ‘strand’ of the bundle is not a taking,

because the aggregate must be viewed in its entirety.”

Andrus v. Allard, 44 U.S. 51, 66 (1979). However, a

regulation which deprived an Indian of the "right to pass on

property -- to one’s family in particular -- [which] has been

part of the Anglo-American legal system since feudal times"

so impairs this bundle of rights as to constitute an invalid

taking without just compensation. Hodel v. Irving, 481 U.S.

704, 717 (1987). Likewise, the assertion by the United

States of a navigational easement over a formerly private

waterway unconstitutionally deprived the owner of "one of

the most essential sticks in the bundle of rights that are

commonly characterized as property -- the right to exclude

others." Kaiser Aetna v. United States, 444 U.S. 164 (1979).

See also Nollan v. California Coastal Commission, 483 U.S.

825 (1987) (deprivation of the right to exclude public from

owner's private beach constitutes a taking).

In Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982), this Court invalidated a city ordinance

which required installation of“ cable television receiver box

on all apartment buildings in New York. Characterizing the

installation of the box as a physical invasion, the Court

found that this invasion "chops through the bundle taking a

slice of every strand." /d. at 437. "[T]he permanent physical

occupation of property forever denies the owner any power

to control the use of the property; he not only cannot

exclude others, but can make no nonpossessary use of the

property. Although deprecation of the right to use and

obtain a profit from property is not, in ever case,

independently sufficient to establish a taking (citations

omitted), it is clearly relevant." /d.

In Whitney Benefits, Inc. v. United States, 18 Cl. Ct. 394

(1989), modified, 20 Cl. Ct. 324 (1990), aff'd 926 F.2d 1169

(Fed. Cir. 1991), cert. denied, U.S. (1991), a statute

prohibiting the mining of a coal deposit was recognized as a

taking of the entire economic value of the coal.

This case presents a dispute where a proper

government purpose, protecting agricultural land,

must be balanced against the absolute diminution

in value of the property at issue that the court

has found. Logically, when a diminution in value

is absolute, a taking is more easily found. ... In

the case at hand, the diminution in property value

is total, and there is no public interest in causing

plaintiffs to solely bear the burden of

maintain[ing] the AVF [alluvial valley floor]

protected by SMCRA.

Id. at 406.

Finally, in Loveladies Harbor, Inc. v. United States, 21 Cl.

Ct. 153 (1990), a denial of a permit to fill the plaintiffs

property was recognized as a taking because it took virtuaily

the entire value of the land:

The location of the lot makes it improbable that a

single home would be built on, it is more likely

than not that this acre will remain an empty lot,

and therefore although it was not included in the

permit application, the denial of the permit

effectively renders this acre without economically

viable use, as well as the 11.5 acres of wetlands.”

Id. at 159. See also Florida Rock Industries, Inc. v. United

States, 8 Cl. Ct. 160, 179 (1985) ("[W]hen government treats

- 10 -

private land as if it were its own, ignoring the interest of the

property owner and rendering the property economically

useless, it has worked a taking and, under our Constitution,

compensation is due.").

B. Lucas Has Been Deprived of All the Economic Value

of The Property

In 1986 when David Lucas bought the two undeveloped

oceanfront lots in the Wild Dunes Development on the Isle

of Palms in Charleston County, South Carolina, Mr. Lucas

had every intention of building on the lots -- a home for

himself and another for sale -- and at that time, there was

no legal impediment to the single-family residential

development by the state, county or municipality. Tr. Cz.

at 1-2. Mr. Lucas paid $475,000 for one lot and $500,000

for the other. 7r. Ct. at J.

As a result of the passage of the Coastal Zone

Management Act of 1988, with its attendant setback lines

along the entire coast, Mr. Lucas’ lots will now remain

"forever undeveloped.” 7r. Ci. ai 2. The trial court found

that, as a result of these building restrictions, Mr. Lucas is

deprived

of any reasonable economic use of the lots,

[which] has eliminated the unrestricted right of

use, and renders them valueless. 7r. Ct. at 5.

Thus, Mr. Lucas has, like the property owner in Loveladies

Harbor, been simply left with empty lots which are destined

to remain so. There is no question that Lucas has lost his

investment and is left with property totally devoid of value.

There is no question that this statute has gone too far, and

—

indeed, could go no farther than taking all economic value Miller v. Schoene, 276 U.S. 272 (1928) (state action to

of Mr. Lucas’ property. Therefore, destroy certain trees carrying infectious disease hazardous to

principal agricultural crop in Virginia).

the interference with [Lucas’] property is of such

a magnitude that "there must be an exercise of But the validity of a nuisance defense cannot be

eminent domain and compensation to sustain [it]." determined by legislative pronouncements alone.* The mere

Penn Central Transportation Co. v. New York, 438 passage of a statute outlawing certain activity does not

‘U.S. 104, 136 (1978) quoting Pennsylvania Coal, determine whether a nuisance exists at the particular

260 U.S. at 413. | property.” First, government cannot be allowed to define

property rights out of existence simply by calling otherwise

The legitimacy of the exercise of the police power is not at legitimate uses of property a nuisance. Cf., Monongahela

issue here. It is only legitimate exercises of police power Navigation Co. v. United States, 148 U.S. 312 (1893).

which implicate the Fifth Amendment. Nollan v. California

Coastal Commission, 483 U.S. 825, 841-42 (1987). It does not rest with the public, taking the

property, through Congress or the legislature, its

Il. The Government Bears the Burden of Proving a representatives, to say what compensation shall be

Nuisance Defense to a Takings Claim paid, or even what shall be the rule of

compensation. The Constitution has declared that

The South Carolina Supreme Court was correct when it

Stated that one may not use one’s property so as to damage

others. Conceptualizing this a little differently, the use of

one’s property so as to harm others is not a legitimate © Cf Loveladies Harbor, Inc. v. United States, 15 C. Ct. 375, 388

property right and, therefore, cannot be taken. Keystone (1988), where Court stated that "the mere fact that the .

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, governmental regulation was intended to promote a public benefit is

n.20 (1987). However, the South Carolina Supreme Court’s not sufficient to [determine whether the regulation substantially

advances a public purpose.] This determination must also involve

reliance — Mugler nd Kansas, 123 U.S. 623 (1887) and the Court’s weighing of that intended public benefit against the

other cases in which this Court has found the nuisance harm inflicted upon the landowner involved." Quoting Agins v. City

exception applicable, is misplaced. In Mugler, this Court of Tiburon, 447 U.S. at 261.

established the "noxious use" doctrine as a narrow exception

to the Fifth Amendment taking clause mandate for those 2 This is not to say that the legislature cannot decree that certain

instances where the proposed use of property involves quite activities injurious to public health and safety (e.g., maintaining a

profound and immediate adverse physical effects upon the facility for producing illegal drugs) constitute a per se nuisance.

However, the Court must ascertain whether the activity actually falls

within the common law notion of "nuisance." and may not simply

accept the proposition that a formerly lawful activity is a "nuisance"

merely because the legislature says it is.

health, safety or welfare of others. E.g., Keystone

Bituminous Ass'n. v. DeBenedictis, 480 U.S. 470 (1987)

(subsidence threatening buildings and ground water) and

o EP « « 3 -

just compensation shall be paid, and the

ascertainment of that is a judicial inquiry.

Id. at 327. Otherwise, the existence of particular property

rights would be dependent upon legislative grace rather than

being constitutionally protected against public seizure

without just compensation. Whitney Benefits, Inc. v. United

States, 18 Cl. Ct. 394 (1989), modified, 20 Cl. Ct. 324 (1990),

aff'd 926 F.2d 1169 (Fed. Cir. 1991), cert. denied, U.S.

(1991) (Enactment of SMCRA which deprived owner of all

value of property is a taking); Bell v. Town of Wells, SS7 —

A.2d 168 (Me. 1989) ("[L]egislature cannot simply alier

these long-established property rights to accommodate new

recreational needs.”).

Second, the legislative branch is institutionally incapable of

performing the judicial function of weighing the evidence

necessary to determine whether the proposed use of the

particular parcel of property will constitute a nuisance.*

Whether a particular proposed use would constitute a threat

of injury to others (.e., a nuisance) cannot be resolved in

the present case by a general proposition that all coastline

development is deleterious. Such coastline development has

traditionally been permitted and even encouraged in South

Carolina and elsewhere in our nation; hence, it has not

traditionally been characterized as a nuisance. Thus, this

landowner is entitled to notice and a judicial hearing to

ascertain whether, on the facts of his particular case, the

outlawed activity is a constitutionally-protected fundamental

property right or (as contended here) an unprotected

nuisance.

But see n.7 supra to statutes defining per se nuisances.

-14-

Indeed, we have frequently observed that whether a

particular restriction will be rendered invalid by the

government’s failure to pay for any losses proximately

caused by it depends largely "upon the particular

circumstances [in that] case."

Penn Central Transportation Co. v. New York City, 438 U.S.

104, 124 (1977), citing United States v. Central Eureka Mining

Co., 357 U.S. 155, 168 (1958). Moreover, if the legislature

could take private property without notice and hearing, then

serious due process concerns are implicated. As indicated by

the court in Florida Rock, 8 Cl. Ct. at 171:

[Simple invocation of the term pollution cannot

foreclose a plaintiffs right to compensation under

the Fifth Amendment. "[MJere labels” of this sort

afford "no talismanic immunity from Constitutional

limitations." (citations omitted) Government may

not circumvent the takings clause by defining

activity as noxious by fiat.... To avoid the

payment of compensation on this theory, the

government must show that the prohibited activity

in fact causes harm.

Thus, the court, and not the legislature, is the appropriate

forum in which to determine whether a nuisance exists. The

government bears the burden of proving such a nuisance

defense. Cf., Loveladies Harbor, Inc. v. United States, 21 Cl.

Ct. at 154-58. The South Carolina Coastal Council failed to

sustain this burden, choosing to rely instead on the

legislative findings supporting the statute. Since those

legislative findings, standing alone, do not constitute

sufficient evidence to sustain the burden of proving the

existence of a nuisance on the facts of this particular case,

the opinion of the South Carolina Supreme Court must be

reversed.

CONCLUSION

Petitioner has proved a taking by demonstrating that he

has been deprived of all of the economic value of his

property. Respondent has failed to prove the existence of a

nuisance defense.

For the foregoing reasons, the judgment of the court below

should be reversed.

Respectfully submitted,

Nancie G. Marzulla

President and Chief

Legal Counsel

6235 33rd Street, N.W.

Washington, D.C. 20015

(202) 686-4197

Counsel for Amici Curiae

December 31, 1991 DEFENDERS OF PROPERTY

RIGHTS

. +