Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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No. 91-453

IN THE est

Supreme Court of the Gnited States

OCTOBER TERM, 1991

Davip H. LUCAS,

Petitioner,

SouTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari

to the Supreme Court

of the State of South Carolina

BRIEF AMICUS CURIAE OF THE NORTHERN

VIRGINIA CHAPTER OF THE NATIONAL

ASSOCIATION OF INDUSTRIAL AND OFFICE

PARKS, AND THE NORTHERN VIRGINIA BUILDING

INDUSTRY ASSOCIATION, INC.,

IN SUPPORT OF THE PETITIONER,

DAVID H. LUCAS

*JOHN HOLLAND FOOTE

JOHN F. CAHILL

GRAYSON P. HANES

HAZEL & THOMAS, P.C.

P.O. Box 12001

Falls Church, VA 22042

(703) 641-4200

*Counsel of Record

Attorneys for Amici Curiae

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....

INTEREST OF THE AMICI CURIAE .

SUMMARY OF ARGUMENT .......

ARGUMENT

THE DENIAL OF ALL RIGHT TO

MAKE ECONOMICALLY VIABLE

USE OF LAND CONSTITUTES A

TAKING FOR WHICH JUST

COMPENSATION IS REQUIRED,

REGARDLESS OF THE

LEGITIMACY OF THE

GOVERNMENTAL PURPOSE

INVOLVED. . .....-s

A. A taking of all

economically viable

use of land is a

compensable taking of

a fundamental

property right.

B. The Court need retain

no "nuisance

exception" to the

Takings Clause, but

if it chooses to do

so that exception is

not controlling

mMOBG@. «© 6 ©

Cc. The Beachfront

Management Act is

similar in effect to

an actual possessory

invasion by the

etate. . « «© © 0 «

iii

II.

CONCLUSION . . . . . > . . . >. . .

A DETERMINATION THAT A

COMPENSABLE TAKING HAS

OCCURRED IN THIS CASE IS

POTENTIALLY CONSEQUENTIAL

OTHER LAND USE

REGULATIONS AS THEY MAY BE

APPLIED TO INDIVIDUAL

LANDOWNERS. se Ss 2 29 21

A. Land use regulation

has evolved in recent

years to include

schemes which operate

to preclude all use

of land in some

circumstances. ..- - 21

B. A state’s ability to

administer programs

of land use

management would not

be adversely affected

by a determination

that Mr. Lucas’s

property was taken,

because this case

represents the outer

limit of regulatory

power. . +++ +s > 27

TABLE OF AUTHORITIES

CASES

Agins v. Tiburon, 447 U.S. 255

(1980) . oe > . > _ . >. . >. .

Armstrong v. United States,

364 U.S. 40 (1960) —. -2 © «

Connolly v. Pension Benefit Guar.

Corp., 475 U.S. 211 (1986) ..

Curtin v. Benson, 222 U.S. 78

(1911) o — — — _ e oO . >. _ _ .

Esposito v. South Carolina Coastal

Council, 939 F.2d 165 (4th Cir.

1991) > > o . . . . . oe > . .

First English Evangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987) ae 6 « «

Florida Rock Indus., Inc. v. United

States, 21 Cl. Ct. 161 (1990)

Hadacheck v. Sebastian, 239 U.S.

TI Bg 5 5 5 5g 6 tl

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984) ......

Hodel v. Virginia Surface Mining

and Reclamation Ass’n, Inc., 452

U.S. 264 (1981) * > . > o . . .

Keystone Bituminous Coal Ass’n

v. DeBenedictis, 480 U.S. 470

ae oe te,

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982)

iii

TABLE OF AUTHORITIES - Continued

Lucas v. South Carolina Coastal

Council, __ S.C. ‘, 404 S.E.2d

$95 (1991) ~ 2. « eeeeces 10,

Miller v. Schoene, 276 U.S. 272

(1928) . . . . . . . . . . 7 + .

Mugler v. State of Kansas, 123 U.S.

a CC ea ee ee ee eee

Nectow v. City of Cambridge, 277

183 (1928) ....

v0.8.

Nollan v.

Comm’n, 483 U.S.

Penn Central Transp. Co.

v. City of New York, 438 U.S.

(1978) ...

California Coastal

825 (1987)

104

Pennsylvania Coal Co. v. Mahon,

260 U.S.

393 (1922) . .

United States v. Causby,

256

Village of Euclid v. Ambler Realty

Co.,

(1946) .

272 U.S.

365 (1926)

328 U.S.

13,

12,

TABLE OF AUTHORITIES - Continued

STATUTES

S.C. Code Ann. § 48-39-10, et seq.

(Law Co-op 1990) ...+ececeeee

Va. Code Ann. § 10.1-2100 et seq.

GUBGRSS SUGG) « ew ew sc eo et ee eo BD,

Va. Code Ann. § 10.1-2107

ee 3 st tt ob ee oe Se ee

Va. Code Ann. § 62.1-13.21,

et seq. (Michie 1987 & Supp. 1991) .

REGULATIONS

Final Chesapeake Bay Act Regulations,

VR 173-02-01, 7:5 Va. Regs. Reg.

Cree 6 es 6.6 eo ee ee eS Se SS

Chesapeake Bay Act Regulations

S ene 6 he es Se Se ee ee ee 6 St

Chesapeake Bay Act Regulations

RS ee ee ee a ee ee

Chesapeake Bay Act Regulations

Swen s 8 6 es 6:é os 6 ee ee oe Se 8

ARTICLES

Burton, Predatory Municipal Zoning

Practices: Changing the Principles of

Constitutionality in the Wake of the

"Takings Trilogy", 44 Ark. L. Rev. 65

(1991) a ¢<¢ © 2 & & &@ & SZ

No. 91-453

In The

Supreme Court of the United states

October, Term, 1991

DAVID H. LUCAS,

Petitioner,

Vv.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari

to the Supreme Court

of the State of South Carolina

BRIEF OF THE NATIONAL ASSOCIATION OF

INDUSTRIAL AND OFFICE PARKS NORTHERN

VIRGINIA CHAPTER, AND THE NORTHERN

VIRGINIA BUILDING INDUSTRY ASSOCIATION,

INC., AS AMICI CURIAE IN SUPPORT OF

THE PETITIONER, DAVID H. LUCAS

INTEREST OF THE AMICI CURIAE

Pursuant to Supreme Court Rule 37,

the Northern Virginia Building Industries

Association, Inc. ("NVBIA"), and the

Northern Virginia Chapter of the National

Association of Industrial and Office

Parks, Inc. ("NATOP"), submit this brief

amicus curiae in support of the

Petitioner, David H. Lucas. Written

consent to the filing hereof has been

granted by counsel for all parties, and

copies of that consent have been lodged

with the Clerk.

_ NAIOP is a trade association

representing members who construct,

develop and operate industrial and office

parks. NVBIA is an association of

construction and real estate development

companies. As owners and developers of

property who must conform to complex and

detailed schemes for the management of

land use, the members of both associations

are daily concerned with regulations which

can have a profound effect on their

interests. They believe that this case

raises important questions as to the outer

limits of the Takings Clause and the

consequences of going beyond then. It

presents an opportunity for this Court to

hold that the deprivation of all

economically viable use of _. private

property, even when it is a consequence of

a concededly bona fide exercise of the

police power, may not be accomplished

without just compensation. It is

important that governments, and landowners

large and small, have clear guidance as to

when a regulation can, indeed, go too far.

SUMMARY OF ARGUMENT

This Court has consistently suggested

that a land use regulation which denies an

owner of property of all economically

viable use of it effects a taking of that

property compensable under the United

States Constitution, without regard to

whether that denial also advances the

public good. The economically beneficial

use of property is a right, not a

government benefit. Although subject to

reasonable regulation, it is a right that

cannot be fully taken for public use,

without just compensation. Even to the

extent that the police power creates a

"nuisance exception" to the Takings

Clause, that exception cannot apply to

complete restrictions on use, or, as here,

construction of a home.

The regulation in question here did

not merely limit or reduce the

economically viable use of David Lucas’s

property. It prohibited all economically

viable use of it, and compelled it to

serve exclusively the purposes of the

state. In actual practice, therefore, the

effect of the South Carolina Beachfront

Management Act does not differ in

consequential degree from a direct

physical invasion of property.

The erroneous proposition that the

police power may trump the Takings Clause

in such circumstances is of increasing

significance. As initially conceived,

land use controls regulated and restricted

the uses to which particular properties

could be put, and their effect was

distributed relatively evenly across the

community. In recent years the scope of

traditional land use regulation has

evolved dramatically. Today it

encompasses a much wider variety of

environmental and other legislative

objectives. Many of these evolving land

use controls are based on the assumption

that the most effective way to achieve

their objectives is profoundly to limit,

or in extreme cases completely to

preclude, use of land. In the case where

such a regulatory scheme does in fact go

so far as to eliminate all economically

viable use of land, it simply goes too

far.

A determination that the South

Carolina Beachfront Management Act has in

this case effected a taking of Mr. Lucas’s

property without just compensation,

however, will neither unleash a deluge of

suits, nor significantly hamper’. the

ability of governments to manage land use

effectively. This case represents an

outer limit, one that amici believe is

only infrequently reached, but whose

existence must be established.

ARGUMENT

I. THE DENIAL OF ALL RIGHT TO MAKE

ECONOMICALLY VIABLE USE OF LAND

CONSTITUTES A TAKING FOR WHICH JUST

COMPENSATION IS REQUIRED, REGARDLESS

OF THE LEGITIMACY OF THE GOVERNMENTAL

PURPOSE INVOLVED.

A. A taking of all economically

viable use of land is a

compensable taking of a

fundamental property right.

The Fifth Amendment provides. in

relevant part that "private property

(shall not) be taken for public use,

without just compensation." Its objective

is to prevent the government from forcing

individuals to bear public burdens, which

in all fairness should be borne by the

public as a whole. Armstrong v. United

States, 364 U.S. 40, 49 (1960).

Takings occur, of course, where there

is an actual exercise of the power of

eminent domain, or where there has been a

physical invasion of property. Loretto v.

Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982). They can also occur when

a regulatory restriction on the use of

property is so severe that it effectively

conscripts that property for public use.

This Court has conceded, however, that it

has been unable to establish a set formula

for determining whether the exercise of

the government’s power to regulate the use

of property has resulted in a regulatory

taking. See Hodel v. Virginia Surface

Mining and Reclamation Ass’n Inc., 452

U.S. 264, 295 (1981). But there can be no

doubt that the issue is of primary

significance in takings jurisprudence, and

this case, which is in lineal descent from

previous regulatory takings cases,

presents a prime opportunity to bring some

order to the regulatory takings area. See

First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304

(1987); Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987); Keystone

Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470 (1987). This case presents a

clear example of the devastating effect

that regulation can have on the use and

value of private property when the

government seeks to advance its purposes

through land use regulation and thereby

denies the owner all, or virtually all,

economically viable use of land.

Amici emphasize that the notion that

the government can reach with impunity so

deeply into the bundle 0of rights

constituting ownership of property as to

deny all economically viable use of it,

without paying for the extinction of those

rights, threatens the very bedrock notions

of private ownership of land to which the

Fifth Amendment is addressed. See

Keystone, 480 U.S. at 511-515 (Rehnquist,

J., dissenting.) If this case does not

present a regulatory taking, it is

difficult to imagine the case that would.

The trial court found that the effect

of the South Carolina Beachfront

Management Act' on David Lucas’s property

was total. Order of the Court of Common

Pleas, 46, Appendix to the Petition for

Certiorari at page 154-155. In order to

avoid finding a taking on these facts,

however, the South Carolina Supreme Court

was constrained to misread Keystone to

compel the conclusion that when a state

exercises its police power to accomplish a

bona fide public purpose, it is insulated

. S.C. Code Ann. § 48-39-10, et seg. (Law

Co-op. 1990).

from the Takings Clause even when that

exercise strips property of all use.

Lucas v. South Carolina Coastal Council,

_. &-C. __, 404 S.E.2d 895 (1991). This

would apparently be true whether the

police power was addressed to a nuisance,

or to any other goal that the legislature

might identify.

Amici contend, to the contrary, that

this Court has clearly suggested, if not

directly held, that a taking occurs when

all economically viable use of property

has been stripped from it, without regard

to the public purposes advanced.

A regulatory taking occurs when the

regulation challenged fails substantially

to advance a legitimate state interest, or

when it denies an owner economically

viable use of his land. Agins v. Tiburon,

447 U.S. 255, 260 (1980); see also Hodel,

452 U.S. at 295-96; Connolly v. Pension

Benefit Guar. Corp., 475 U.S. 211, 224-25

(1986); Nollan, 483 U.S. at 834. These

requirements are not conjunctive. The

first aspect of this test, upon which the

South Carolina Court apparently rested its

entire analysis, does not stand as a

separate basis for the insulation of

governmental conduct from the Takings

Clause. Indeed, it may fairly be seen

only as a “condition precedent" to the

exercise of the regulatory power in the

first instance, a restatement of the

fundamental principle that all regulation

must advance a legitimate state interest,

and that if it does not, its effect on

property is a taking. It has never served

as a basis upon which to justify the

elimination of all rights in private

property except the barest right to

possess it, and to exclude others from

physical intrusion.

To say that a purpose is lawful,

however, is not to justify any means of

accomplishing that purpose, and thus the

second element of the regulatory takings

test must come into play in the proper

case. If the government so diminishes the

value of land in advancing its good ends,

that the land becomes worthless, then

without more, it is a taking. While a

takings analysis requires consideration of

the particular incident of property which

has been taken, and some such denials of

right may not offend the Takings Clause,

when a property owner is left with nothing

more than good feeling regarding his land,

the Constitution forbids it without

payment. This Court has recognized that

one of the most fundamental rights

inhering in land ownership is the right to

make some economically viable use of it,

when it has been acquired with a bona fide

expectation that it can be so used. See

Penn Central Transp. Co. v. City of New

York, 438 U.S. 104, 143 (1978) (Rehnquist,

J., dissenting). When the right to use

has been stripped from ownership, property

has been taken. No public purpose,

however legitimate, can accomplish that

result unless the costs of it are shared

equally by the public.

Were it otherwise, then the fears

expressed in Justice Harwell’s compelling

dissent below would be realized: there

would never be a case in which diminution

in value could constitute a _ taking.

Lucas, __ S.C. at ___, 404 S.E.2d at 905

(Harwell, J., dissenting). It would,

indeed, be difficult to say such a thing

as a regulatory taking remains a viable

concept. But this Court has suggested for

more than fifty years that drastic

diminution in value, a thing directly and

inseparably related to the economically

viable uses to which it can be put, can in

the proper case effect a taking of

property even in the face of the most

compelling exercise of the police power.

Pennsylvania Coal Co. v. Mahon, 260 U.S.

393 (1922) .?

B. The Court need retain no

"nuisance exception” to the

Takings Clause, but if it

chooses to do so that exception

is not controlling here.

Although amici do not believe that

this Court need retain any "nuisance

exception" to the Takings Clause, a

determination that a taking occurs in

circumstances such as those presented here

would not be inconsistent with the

continued existence of such an exception.

The government may surely eliminate some

nuisance uses of property without

compensation for the loss of those uses.

2 . .

In First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304

(1987), the Court assumed because of the posture of

that case that the Ordinance in question had taken

all use of the Church’s property. It concluded

that were such denial of all use proved, it would

constitute a taking, even if temporary, for which

compensation would be required. In this case, the

trial court found that all use had been denied the

property. It would follow that a taking, temporary

or permanent, has occurred.

E.g., Mugler v. State of geneas, 123 U.S.

623 (1887) ; Hadacheck v. Sebastian,

239 U.S. 394 (1915). But this hardly

leads to the conclusion that because the

government may eliminate noxious uses, it

may therefore eliminate all economically

viable uses of property.* Such extreme

sanction against private use of property

in the advancement of a public purpose

would not constitute regulation, but

proscription worthy of a proconsul. The

United States Court of Claims has rejected

’ As Amicus Pacific Legal Foundation has

aptly noted in its Brief in Support of the Petition

for Certiorari, there is a consequential

distinction between those cases in which regulation

has eliminated a particular use of a parcel of

property identified as a nuisance (see Mugler and

Hadacheck, infra, text accompanying this note; See

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

those situations in which regulation has eliminated

all economically viable use of the property for any

private purpose. See Brief in Support on Behalf of

the Pacific Legal Foundation, at 6-12. Compare

Mugler, (prohibition of the use of property as a

brewery not a taking) with Curtin v. Benson, 222

U.S. 78 (1911) (prohibition on use of national park

lands for grazing a taking). Presumably the

property on which “nuisance uses" once existed

could yet be put to other lawful and valuable use.

Mr. Lucas’s property plainly cannot be put to any

other lawful uses, so long as it chances to remain

adjacent to the Atlantic Ocean.

Similar unwarranted extension of the

nuisance exception, on the grounds that,

if accepted, the argument "would render

the concept of regulatory taking virtually

meaningless." Florida Rock Indus., Inc.

v. United States, 21 Cl. Ct. 161, 167

(1990).

Assuming that there is yet something

to the nuisance exception beyond its

function as a statement of the

unquestioned power of government to -abate

nuisances, however, amici are concerned

with the South Carolina Supreme Court’s

apparent equation of the exercise of the

police power in this case, with the

elimination of a nuisance. Taken to its

logical extreme, the court’s analysis

would effectively mean that the

construction of homes, offices, and

businesses could constitute a public

nuisance, if the government chose to say

6 These are, of course, the very uses

so.

which constitute the economic lifeblood of

amici’s membership.° If no taking is

found on the facts of this’ case,

regulators would be granted license to

extend their reach ever further, without

the potentially sobering remedy of

? The South Carolina Supreme Court’s

determination that Mr. Lucas’s use of his property

for a home site would constitute a nuisance was, of

course, based solely upon his failure to contest

the legitimacy of the State’s purposes in seeking

to protect beachfront property. So far as amici

are aware no court has ever held that the

construction of a home constitutes a nuisance, and

we have not yet reached the point where people and

the homes that they live in have been declared a

form of pollution. In fact, property adjacent to

Mr. Lucas already had homes on it which were beyond

the reach of the Act. The implausibility of the

South Carolina Court’s use of the nuisance

exception as applied to a single family residential

use was aptly discussed by Judge Hall in his

dissent in Esposito v. South Carolina Coastal

Council, 939 F.2d 165, 173 n.2 (4th Cir. 1991)

("Living in a beach bungalow bears little

resemblance to the noxious uses of property the

Supreme Court has identified.”") See also Keystone,

480 U.S. at 511-515 (Rehnquist, J., dissenting)

(discussing limitations on the nuisance exception).

’ Amici do not suggest that the power of

the government to address such questions is limited

by the Takings Clause. In this case, for example,

it is uncontested that the state can forbid the

construction of beachfront houses as a legitimate

exercise of its governmental powers. The question

is whether it may do so at no cost to the public.

compensation for those cases in which they

go too far: it would be difficult to

define, or even discern, an outer limit on

regulatory authority to act without

compensation if virtually complete

diminution of value by the denial of

economically viable uses of property is

not a taking.®

Cc. The Beachfront Management Act is

similar in effect to an actual

possessory invasion by the

state.

Mr. Lucas’s property has not only

been stripped of its private uses. It has

been directly conscripted to public use.

Under the Beachfront Management Act, no

permanent or habitable structure may be

* Indeed, if the mere exercise of the police

power is sufficient to immunize a regulation from

being construed as a taking, then the only

challenge that might be levied against such a

regulation would be that it did not substantially

advance a legitimate public purpose. Given the

deference which courts properly give to the

exercise of the legislative power in land use

matters (see, e.g., Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229 (1984)) such challenges could

be even more difficult to mount than the already

difficult task of demonstrating a taking.

placed on the Lucas property.’ The effect

is to compel the property to remain

perpetually a part of the pristine South

Carolina beachfront, precisely in order to

advance the purposes of the Beachfront

Management Act.

It is difficult to see how this

compelied dedication of property to the

services of South Carolina’s

legislatively-identified purposes, (and to

the complete exclusion of any purposes

which Mr. Lucas might have in good faith

believed he might pursue under the lawful

zoning of his land), is consequentially

different from an actual physical invasion

of his property for a public use. Had

South Carolina sought to turn Mr. Lucas’s

lots into a park or a landing field, or to

force access for a cable television line,

there is no doubt that such impressment

. See Lucas, __ S.C. at , 404 S.E.2d at

896-898.

would have effected a _ taking. See

Loretto, 458 U.S. 419 (1982). In United

States v. Causby, 328 U.S. 256, 261-262

(1946), the Court recognized that if the

frequency and altitude of airplane flights

prohibited landowners from using their

land, their loss would be as complete as

if the United States had entered the land

and taken exclusive possession of it, for

the government had “exercise[{d] complete

dominion and control over the surface of

the land[.]" The same is true here.

In all such cases, the government has

compelled privately-owned land to be put

to the direct attainment of a public end.

Here, it has been applied to the state’s

ecological and tourism-reliated goals. No

consequentially different result obtains

than if the State had formally condemned

Mr. Lucas’s land, and assigned it to an

agency for the purposes of the Beachfront

Management Act. See Penn Central Transp.

Co., 438 U.S. at 123 n.25.°

II. A DETERMINATION THAT A COMPENSABLE

TAKING HAS OCCURRED IN THIS CASE IS

POTENTIALLY CONSEQUENTIAL TO OTHER

LAND USE REGULATIONS AS THEY MAY BE

APPLIED TO INDIVIDUAL LANDOWNERS.

A. Land use regulation has evolved

in recent years to include

schemes which operate to

preclude all use of land in some

circumstances.

Land use management statutes,

ordinances and regulations are, of course,

the classic examples of the kinds of

regulatory impositions which may, in

furtherance of the public welfare, impose

significant economic burdens on

landowners. In most cases, however, the

burden on the landowner will be without

constitutional effect. See Penn Central

. The similarity between actual physical

invasions and regulatory invasions has been often

addressed before, and this Court has “never

embraced the proposition that a ‘taking’ can never

eccur unless the government has transferred

physical control over a portion of a parcel.” Penn

Central Transp. Co., 438 U.S. at 123 n.25.

Transp. Co., 438 U.S. at 139-40

(Rehnquist, J. dissenting).

Historically, however, zoning

enabling acts permitted governments only

to regulate and restrict uses of property.

Under traditional zoning enabling

legislation, uses are categorized, land is

divided into zones or districts in which

those uses are permitted, and either

general or specific regulations are

imposed on the conduct of the uses

permitted. The value of property can be

dramatically enhanced, or reduced, by the

requirements of such ordinances, and even

though such schemes are unquestionably

constitutional on their face (Village of

Euclid v. Ambler Realty Co., 272 U.S. 365

(1926)), it has long been plain that, as a

matter of due process at least, they can

be unconstitutional as applied to

particular properties. Nectow v. City of

Cambridge, 277 U.S. 183 (1928).

Over the past two decades, however,

land use regulation has changed

significantly as environmental and other

preservationist concerns have loomed ever

larger. In many new land use regulatory

schemes, the principal thrust of the

regulatory approach is not simply the

regulation of land use, but its

elimination: the public purposes which are

advanced are deemed best advanced by the

preservation of some or all of a parcel

undisturbed.’

As but one example of this kind of

regulatory approach, one that directly

affects amici, landowners in certain

Tidewater Virginia jurisdictions have been

subject since 1988 to the provisions of

the Chesapeake Bay Preservation Act, Va.

. See Burton, Predatory Municipal Zoning

Practices: Changing the Principles of

Constitutionality in the Wake of the "Takings

Trilogy”, 44 Ark. L. Rev. 65, 72 (1991) (discussing

current government regulatory strategy in the

context of the Fifth Amendment).

Code Ann. § 10.1-2100 et seg. (Michie

1989), and Final Regulations, VR 173-02-

O01, 7:5 Va. Regs. Reg. 699-712, December

3, 1990. Under the requirements of the

Bay Act, certain localities are required

to adopt local ordinances conforming to

state regulatory requirements for the

reduction of non-point source pollution

escaping into the Chesapeake Bay, to

protect and enhance the quality of water

in the Bay. The regulatory goals and

objectives of the Act are thus similar to

those of the South Carolina Beachfront

Management Act."

The primary land use mechanism

employed to advance the goals of the

Virginia Bay Act is a virtually complete

prohibition on the use of properties

In addition to the Bay Act, Virginia has

its own Coastal Primary Sand Dune Protection Act

dene Code Ann. § 62.1-13.21, et seq. (1987 & Supp.

1991)), that operates much as does the South

Carolina Act with s

erosion. pecific regard to sand dune

located within certain identified

"Resource Protection Areas" (RPAs), and

within a 100 foot undisturbed buffer

surrounding those areas. Va. Code Ann. §

10.1-2107; VR 173-02-01 § 3.2 (B) (5), §

4.3.'' No uses are permitted in RPAs or

their buffer zones except "water-dependent

facilities", and under the provisions of

the regulations it is plain that in many

cases there will be, in fact, no uses

which can be made of property subject to

these requirements.'* There will almost

s Resource Protection Areas, or RPAs,

consist of tidal wetlands, non-tidal wetlands

connected by surface flow and contiguous to tidal

wetlands or tributary streams, tidal shores, and a

100 foot buffer zone located adjacent to and

landward of each of these components, and along

both sides of a tributary stream. VR 173-02-01 §

3.2 (B) (1-5).

- A “water-dependent facility" is a

development of land that cannot exist outside of an

RPA, and must be located on the shoreline by reason

of the intrinsic nature of its operation. Such

uses include, but are not limited to, ports, intake

and outfall structures of power plants, water and

sewer treatment plants, and storm sewers, marinas

and other boat~docking structures, beaches and the

like, and fisheries and other marine resources

facilities. VR 173-02-01 § 1.4. In many cases, of

course, permission to make a “water-dependent use

of, say, a non-tidal wetland, is simply impossible

certainly arise circumstances in which the

case-specific application of these

requirements will completely restrict the

use of an entire parcel of land.

In some measure, of course, the

restrictions on use to be found in the

Chesapeake Bay Act, the South Carolina

Beachfront Management Act, and similar

enactments nationwide, resemble ordinary

setbacks long recognized as legitimate

exercises of the zoning power. The

consequential difference between setbacks

and the features of these new regulatory

schemes, however, is that while the former

relate to buffers measured from the outer

perimeter of a discrete parcel of

property, reservations of property under

such statutes as the Chesapeake Bay Act

know no limitation. They are dependent

not upon property boundaries, but upon the

even in theory.

existence or nonexistence of natural

features. Such restrictions on use

possess, therefore, the potential for

precluding the economically viable use of

property otherwise useable under a

traditional zoning scheme, in a way that

setbacks customarily do not. To the

extent that such regulations work the kind

of result that has occurred in this case,

they effect a taking as surely as the

Beachfront Management Act has on Mr.

Lucas’s land.

B. A state’s ability to administer

programs of land use management

would not be adversely affected

by a determination that Mr.

Lucas’s property was’ taken,

because this case represents the

outer limit of regulatory power.

Amici do not suggest that land use

regulation which seeks to achieve ends not

originally contemplated by traditional

zoning ordinances, or which seek to

protect the environment or advance

preservationist policies, are in any sense

facially infirm. In the vast majority of

cases, the Takings Clause is not

implicated by even serious diminution in

value of land. Land use ordinances

possess constitutional demon seed only

when, as here, they operate to deny a

landowner of all or virtually all

economically viable use of his land.

A decision in favor of Mr. Lucas will

not toll the death knell of land use

regulation, traditional or innovative, and

a state’s authority to protect’ the

environment through appropriately tailored

regulation will not be - emasculated

thereby. But the effect on the individual

landowner can be so severe that the public

should in fairness bear the cost of that

effect.

CONCLUSION

The amici respectfully request that

this Court reverse the judgment of the

Supreme Court of South Carolina.

Respectfully Submitted,

National Association of Industrial and

Office Parks, Inc., Northern Virginia

Chapter, and the Northern Virginia

Building Industry Association, Inc.

*John Holland Foote

John F. Cahill

Grayson P. Hanes

Hazel & Thomas, P.C.

P.O. Box 12001

Falls Church, VA 22042

(703) 641-4200

*Counsel of Record

Attorneys for the

Amici Curiae

January 2, 1992

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.