Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

eupreme Court, U.S. |

FlRLEeQn

JAN 2 1992

OF Five rit

No. 91-453 =

In The

Supreme Court of the United States

October Term, 1991

¢

DAVID H. LUCAS,

Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

e

On Writ of Certiorari to the Supreme Court of the

State of South Carolina

¢

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF PETITIONER

DAVID H. LUCAS

e

RONALD A. ZUMBRUN

*EDwarD J. CONNOk, JR.

R. S. RapForp

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

CCH KLE AW BRIEF PRINTING CO ae 25 6964

OR CALL COLLECT (402) 342 2834)

ORE

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.................. iii

OU GO GUID 6 65 cccdcciincendascncccccess l

DEE UMIOD COP TEEm CASE... 2c ccc cccccccscccees 3

SUMMARY OF ARGUMENT...................245. 4

EOF ISTE LTTE CTE CERT TUT ETE 10

I. THE COURT BELOW FUNDAMENTALLY MIS-

CONSTRUED THIS COURT’S REGULATORY

Ey SIE 0 Soh c cw cnesee6se bv encess 10

A. This Court Has Established Two “Bright-

Line” Tests for Regulatory Takings ........ 10

B. South Carolina’s Beachfront Management

Act Clearly Violates at Least One of This

Court’s Threshold Tests for Regulatory Tak-

Is kos ohn 5 6 0:00540:504 6064646446008 050 8 8 15

C. This Court Has Never Recognized a “Public

Harm” Exception to the Takings Clause

Broad Enough to Permit the Deprivation of

All Economically Viable Use of Property

Without Payment of Just Compensation.... 16

1. Meaningful Constitutional Interpretation

Is Dependent on Historical Context .... 17

2. Mugler and Its Progeny Employ an Out-

dated, Single-Pronged Due Process Test

Wholly Inappropriate to Modern Regula-

tory Takings Claims ................... 18

3. This Court Has Never Upheld a Regula-

tion That Deprives an Owner of all Eco-

nomically Viable Use of Property ...... 20

ii

TABLE OF CONTENTS - Continued

4. The Historical Significance of

Pennsylvania Coal .............0+++00505 23

Il. EVEN IF THIS COURT WISHES TO ESTABLISH

A NOXIOUS USE EXCEPTION TO THE TAK-

INGS CLAUSE, THIS EXCEPTION COULD NOT

REASONABLY BE HELD TO ENCOMPASS PETI-

TIONER’S CONSTRUCTION OF A PERSONAL

RESIDENCE ON HIS OWN LAND............ 25

CONCLUSION 6 ooo c cc uccscccceusenesesee anne 26

iii

TABLE OF AUTHORITIES CITED

Page

Cases

Agins v. City of Tiburon,

I OUD occ cece eee eee 7, 8, 10, 13, 15

Armstrong v. United States, 364 U.S. 40 (1960).....5, 6

Chicago, Burlington & Quincy Railroad v.

ET 20

Esposito v. South Carolina Coastal Council,

S| 25

First English Evangelical Lutheran Church of

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

EUG Saw Uuigb ds uve cscccsscccccccces 2, 5, 6

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

Ee ees ose estncsccccceseccece 21, 22

Hadacheck v. Sebastian, 239 U.S. 394 (1915)......... 21

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

Hodel v. Virginia Surface Mining and Reclamation

Association, Inc., 452 U.S. 264 (1981)........... 14, 15

Kaiser Aetna v. United States, 444 U.S. 164 (1979)..... 8

Keystone Bituminous Coal Association v.

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

Kirby Forest Industries, Inc. v. United States,

EEE IE 14

Miller v. Schoene, 276 U.S. 272 (1928)........ 21, 22, 24

Monongahela Navigation Company v. United

UD cece eens 7

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

iV

TABLE OF AUTHORITIES CITED — Continued

Page

Nollan v. California Coastal Commission,

GED UE. Ge Ge cscs cccccensscncuconce 2, 7, 13, 26

Penn Central Transportation Corp. v. City

of New York, 438 U.S. 104 (1978)............. passim

Pennsylvania Coal Co. v. Mahon,

ED UE BO GHOED 6 os ccc cascesicccecasesses passim

Presbytery of Seattle v. King County, 787 P.2d 907

Ss WEEE 605 006c00sedssecdepasnaenishanch eases 18

Pumpelly v. Green Bay & Mississippi Canal Co.,

Ge Gea WE CRED 6 onc iucesersedscctdesnteasiass 19

Richards v. Washington Terminal Co., 233 U.S. 546

FT 5 50009. 0bn0607.0050nbneeansdeseecneseeenntee 19

Seawall Associates v. City of New York,

See PE Ce E.G. CU sc ce wentpeosavenseuses 10

RULEs

Dapente Cams TRS FF «066 ticckcens ces nsdseiencennys 1

MiIscELLANEOUS

Ackerman, Constitutional Politics/Constitutional

FSD ee 8 rere 17, 23

Comment, Taking Issue with Takings: Has the

Washington State Supreme Court Gone Too

Far?, 66 Wash. L. Rev. 545 (1991) ................. 18

Cormack, Legal Concepts in Cases of Eminent

Peas, SE WP Ends Be COED 5 cec's cs vesdscececes 19

TABLE OF AUTHORITIES CITED - Continued

Page

Falik & Shimko, The “Takings” Nexus--The

Supreme Court Chooses a New Direction in

Land-Use Planning: A View from California,

Se WEED Bide WOU CUI vo ccc ncccntecccvccceces 10

Michelman, Property, Utility, and Fairness: Com-

ments on the Ethical Foundations of “Just Com-

pensation” Law, 80 Harv. L. Rev. 1165 (1967) . .16, 17

Peterson, Land Use Regulatory “Takings”

Revisited: The New Supreme Court

Approaches, 39 Hastings L.J. 335 (1988)........... 10

No. 91-453

¢

In The

Supreme Court of the United States

October Term, 1991

+

DAVID H. LUCAS,

Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

6

On Writ of Certiorari to the Supreme Court of the

State of South Carolina

o

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF PETITIONER

DAVID H. LUCAS

o

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae in support of petitioner David H. Lucas. Written

consent to the filing of this brief has been granted by

counsel for all parties. Copies of the letters of consent

have been lodged with the Clerk of this Court.

¢

INTEREST OF AMICUS

Pacific Legal Foundation is a nonprofit corporation

organized under the laws of the State of California for the

purpose of engaging in litigation in matters affecting the

public interest. Policy is set by a Board of Trustees com-

posed of concerned citizens, the majority of whom are

attorneys. PLF’s Board evaluates the merits of any con-

templated legal action and authorizes such action only

when the Foundation’s position has broad support within

the general community. PLF’s Board has authorized PLF

participation as amicus curiae in this matter.

It is believed that PLF’s public policy perspective and

litigation experience in support of private property rights

will provide a helpful additional viewpoint on the consti-

tutional issues presented in the case at bar. PLF has

participated in numerous cases involving the Takings and

Due Process Clauses of the Fifth and Fourteenth Amend-

ments to the United States Constitution. Its attorneys

were counsel of record in Nollan v. California Coastal Com-

mission, 483 U.S. 825 (1987), and PLF participated as

amicus curiae in Keystone Bituminous Coal Association v.

DeBenedictis, 480 U.S. 470 (1987); Hodel v. Irving, 481 U.S.

704 (1987); and First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304 (1987).

PLF participated in the present case as amicus Curiae

in support of petitioner before the South Carolina

Supreme Court and filed a brief with this Court in sup-

port of the petition for writ of certiorari.

The opinion below holds that a regulation charac-

terized by the court as enacted to prevent “serious public

harm” is immune to challenge under the Takings Clause

of the United States Constitution, even though it deprives

a citizen of all economically viable use of his property.

Ww

This holding directly conflicts with well-established pre-

cedent of this Court which teaches that a regulatory

taking occurs whenever a property regulation deprives

owners of economically viable use of their property. By

erroneously positing a broad “public harm” exception to

the Takings Clause, the South Carolina Supreme Court

has deprived petitioner of fundamental rights guaranteed

by the United States Constitution.

é

STATEMENT OF THE CASE

David H. Lucas is the owner of two undeveloped

oceanfront lots in Charleston County, South Carolina,

which he purchased on December 3, 1986, for $975,000.

On July 1, 1988, the South Carolina General Assembly

adopted the Beachfront Management Act which regulated

development along the South Carolina coastline by

imposing statutorily mandated setback lines. The Beach-

front Management Act is administered by respondent

South Carolina Coastal Council.

The Act’s setback line precluded petitioner from

building a residence or making any other economically

reasonable use of his property. Since the two lots are

located seaward of the setback line, the Act required

them to remain forever undeveloped.

Petitioner filed an action in the South Carolina Court

of Common Pleas asserting that the Act’s restrictions on

the use of his lots amounted to a taking of his private

property for public use without just compensation. The

court agreed and awarded petitioner compensation for

the regulatory taking. In reaching this conclusion, the

court made the following finding of fact:

“I find that the imposition of building restric-

tions on Lots 22 and 24 imposed by the South

Carolina Coastal Council deprives Lucas of any

reasonable economic use of the lots, has elimi-

nated the unrestricted right of use, and renders

them valueless.” Order of the Court of Common

Pleas at 5.

On appeal the South Carolina Supreme Court

reversed, although it did not dispute the factual finding

that the Beachfront Management Act effectively deprives

petitioner of all economically viable use of his property.

Instead, the reversal was based on the court's assertion

that the Takings Clause never requires compensation

when a regulation is enacted to prevent a serious public

harm. Lucas v. South Carolina Coastal Council, 404 S.E.2d

895, 899-900 (S.C. 1991). This ruling directly conflicts with

the established precedent of this Court on a question of

federal constitutional rights.

—— o-

SUMMARY OF ARGUMENT

The holding of the court below, that the Beachfront

Management Act has not taken petitioner's property

without just compensation, directly conflicts with this

Court's regulatory takings doctrine.

in 1922, this Court held that government regulation

can be challenged as a taking under the Takings Clause of

the Fifth Amendment to the United States Constitution.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Writ-

ing for the majority, Justice Holmes said:

“The general rule, at least, is that while property

may be regulated to a certain extent, if regula-

tion goes too far it will be recognized as a tak-

ing Id. at 415.

Justice Holmes, while referring to the Fifth Amend-

ment’s Takings Clause as an “absolute protection,” nev-

ertheless recognized that it was qualified by “the police

power.” Id.

But given this qualification, Justice Holmes also

observed that “the natural tendency of human nature is

to extend the qualification more and more until at last

private property disappears.” /d.

This description embraces precisely what has

occurred in the instant case. And, as Justice Holmes

stated, such a result “cannot be accomplished in this way

under the Constitution of the United States.” Id.

Although this Court has in more current times

referred to Justice Holmes’ analysis as “established doc-

trine” (First English Evangelical Lutheran Church of Glen-

dale v. County of Los Angeles, 482 U.S. at 316), this Court

has also recognized that the question of what constitutes

a regulatory taking “has proved to be a problem of con-

siderable difficulty.” Penn Central Transportation Co. v. City

of New York, 438 U.S. 104, 123 (1978).

What has always been clear, however, is that the

takings issue is to be considered in light of the guiding

principle that the Fifth Amendment's Takings Clause

“was designed to bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. 40, 48 (1960).

In First Church, this Court referred to this principle as

“axiomatic.” 482 U.S. at 318. And in applying this princi-

ple, it has long been recognized that “the question at

bottom is upon whom the loss of the changes desired

should fall.” Pennsylvania Coal, 260 U.S. at 416.

In Penn Central, the Court said that it had been

“unable to develop any ‘set formula’ for determining

when ‘justice and fairness’ require that economic injuries

caused by public action be compensated by the govern-

ment, racher than remain disproportionately concentrated

on a few persons.” 438 U.S. at 124.

The Court, in Penn Central, nevertheless “identified

several factors that have particular significance.” Id. The

Court referred to:

1. “the character of the governmental action,”

2. the “economic impact of the regulation,”

and

“the extent to which the regulation has

interfered with distinct investment-backed

expectations.” /d.

ud

These factors have never been held to be exclusive.

They are merely means for analyzing the question of

whether, in a given factual situation, the regulation goes

too far. In other words, such factors assist in determining

whether the regulation in reality is an attempt to load

“upon one individual more than his just share of the

burdens of government.” See Keystone Bituminous Coal

Association v. DeBenedictis, 480 U.S. at 512 (Rehnquist, C.J.,

dissenting) (citing Monongahela Navigation Company v.

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

As stated in Agins v. City of Tiburon, 447 U.S. 255, 260

(1980):

“The determination that governmental action

constitutes a taking is, in essence, a determina-

tion that the public at large, rather than a single

owner, must bear the burden of an exercise of

state power in the public interest.”

From the generalized considerations spelled out in

Penn Central, where the facts are suffiently extreme, how-

ever, two bright-line tests have evolved which weigh so

heavily in favor of a takings conclusion that when either

one occurs, it can fairly be said that the regulation goes

“too far” and that “fairness and justice” require the find-

ing of a taking.

The first is where the character of the governmental

action is such that it fails to substantially advance a

legitimate state interest. Nollan v. California Coastal Com-

mission is an example of this bright-line test and a taking

was found despite the fact the property owner was left

with reasonable use of the property—a conclusion relied

on earlier by the California court beiow. See Nollan,

483 U.S. at 830.

The second bright-line test recognizes a taking wher-

ever the economic impact of the government regulation is

so severe as to deny an owner economically viable use of

the property. Hodel v. Irving, 481 U.S. 704, illustrates this

test. There the regulation amounted to “virtually the

abrogation of the right to pass on a certain type of prop-

erty.” Id. at 716.

In Agins, this Court made it clear that either finding

alone would result in a taking The Court summarized

the rule as follows:

“The application of a general zoning law to

particular property effects a taking if the ordi-

nance does not substantially advance legitimate

state interests .. . or denies an owner economi-

cally viable use of his land.” Agins, 447 U.S.

at 260.

In Keystone, 480 U.S. at 485, this Court, quoting Agins,

referred to these two factors as having “become integral

parts of our takings analysis.”

Of course, it follows that even though a government

regulation may survive these bright-line tests, this does

not end the inquiry. The character of the government

action is still relevant. So also is the regulation’s eco-

nomic impact on the property. And this Court has given

particular attention to interference with reasonable

investment-backed expectations. See, e.g., Kaiser Aetna v.

United States, 444 U.S. 164, 179 (1979). But, given the

foregoing evolution of this Court's takings analysis, it is

helpful, as a practical matter, to approach an individual

case initially with the bright-line tests for if the regulation

does not survive them, the answer is at hand.

In the present situation, it is clear that the regulation

does not survive the second test.

The court below relies on a broad “public harms”

exception to the Takings Clause stemming from the 19th

Century due process case, Mugler v. Kansas, 123 U.S. 623

(1887). However, Mugler and its progeny cannot support

this interpretation for two reasons. First, Mugler was

decided 30 years before this Court first recognized the

possibility of regulatory takings. Second, neither Mugler

nor any other decision of this Court upholds the validity

of a regulation that—like the Beachfront Management

Act—deprives an owner of all economically viable use of

his property. And if, despite its prior holdings, this Court

should adopt some kind of a “nuisance” exception which

allows government to deprive an owner of economically

viable use of property, it is inconceivable that the con-

struction of a private residence on a citizen’s own land

could be characterized as a nuisance or nuisance-like

activity.

Finally, even if this Court were to find that the regu-

lation survived the bright-line tests, it would still not

survive scrutiny under the more general considerations

which have been looked to by this Court. There has been

an obvious frustration of investment-backed expecta-

tions. And the character of the government action weighs

heavily in favor of a taking conclusion as was found by

the dissenting justices in the South Carolina Supreme

Court.

10

ARGUMENT

I

THE COURT BELOW FUNDAMENTALLY

MISCONSTRUED THIS COURT’S

REGULATORY TAKINGS DOCTRINE

A. This Court Has Established Two

“Bright-Line” Tests for Regulatory Takings

This Court has recognized that, absent compensation,

land use regulations will effect an unconstitutional taking

if they fail to “substantially advance legitimate state

interests,” or if they “den[y] an owner economically via-

ble use” of property. Agins v. City of Tiburon, 447 US.

at 260. These criteria are stated in the disjunctive; either is

sufficient to establish a regulatory taking without further

analysis. Accordingly, this two-part inquiry can be

viewed as a “bright-line” threshold test that land use

regulations must clear as a first step in determining

whether they violate the Takings Clause.

Both elements of this two-pronged test must be

resolved in the government’s favor before a reviewing

court need further analyze the challenged regulation. See

Peterson, Land Use Regulatory “Takings” Revisited: The New

Supreme Court Approaches, 39 Hastings L.J. 335, 357 (1988).

See also Seawall Associates v. City of New York, 542 N.E.2d

1059, 1068 (N.Y. 1989) (referring to two-prong “threshold

test” in regulatory takings analysis). If either prong of the

test is decided in favor of the property owner, the mea-

sure will be found to constitute a regulatory taking. See,

e.g., Falik & Shimko, The “Takings” Nexus—The Supreme

Court Chooses a New Direction in Land-Use Planning: A View

from California, 39 Hastings L.J. 359, 362 (1988).

11

It is helpful to trace the gradual evolution of the two-

pronged threshold test over the 70 years since this Court

first recognized that otherwise legitimate police-power

regulations can so attenuate the rights of property owners

as to effect a taking under the Fifth Amendment. Its roots

can be found in the seminal 1922 regulatory takings case,

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

In Pennsylvania Coal, Justice Holmes struggled to

identify the relevant factors that determine when a regu-

lation “goes too far” and must be recognized as a taking.

Id. at 415. On the one hand, Holmes was concerned with

the “extent” or “sufficiency” of the governmental interest

advanced. Id. at 413-14. Justice Holmes clearly recog-

nized, however, that a legitimate police-power rationale

could not in itself insulate a regulation from challenge

under the Takings Clause.

The Pennsylvania Supreme Court had upheld the

Kohler Act on precisely the same grounds that the South

Carolina Supreme Court relies upon in the case at bar:

“that the statute was a legitimate exercise of the police

power.” Id. at 412. Holmes perceived, however, that if the

“seemingly absolute” protections of the Takings Clause

could be overridden by the police power, “the natural

tendency of human nature is to extend the qualification

more and more until at last private property disappears.”

Id. at 415.

In other words, Pennsylvania Coal established that

finding a regulation to be a legitimate exercise of the

police power is a necessary but not sufficient condition to

pass constitutional muster under the Takings Clause.

Beyond the requirement of police power legitimacy, this

12

Court added a second test: the “extent of the diminution”

of the victim’s property interest. Id. at 413. Since the

Kohler Act made it “commercially impracticable” to mine

certain coal deposits, the regulation was found to violate

the Takings Clause despite its rationale as a public health

and safety measure. Id.

The two inquiries highlighted in Pennsylvania Coal—

the character of the governmental interest and the dimi-

nution of private property rights——-have gained increasing

significance under this Court’s regulatory takings doc-

trine and have acquired sharper focus and force over

time.

More than 50 years after Pennsylvania Coal, this Court

again examined its regulatory takings doctrine in Penn

Central Transportation Corp. v. City of New York, 438 U.S.

104. Writing for the Court, Justice Brennan acknowledged

that regulatory takings law remained an area of “ad hoc

factual inquiries.” Id. at 124. However, two of the factors

singled out as especially relevant were the “character of

the governmental action” and the “economic impact of

the regulation” on the claimant. /d.

Penn Central's inquiry into the “character” of a chal-

lenged regulation was the direct linear descendant of

Justice Holmes’ concern with the “sufficiency” or

“extent” of the governmental interest in Pennsylvania

Coal. Pursuant to this inquiry, the Penn Central Court

found that New York’s landmark regulation fell within

the city’s police power, serving to promote the public

“health, safety, morals or general welfare.” Id. at 125.

Significantly, however, the inquiry did not stop there.

13

Having satisfied itself that New York’s landmark reg-

ulation was a legitimate exercise of the police power, this

Court then turned to the second issue, the economic

impact of the regulation on petitioner’s property. Penn

Central's regulatory takings claim was rejected only after

the Court determined that the owner could continue to

make profitable use of the regulated property. Id.

at 135-38.

In 1980, the language of the regulatory takings test

took a more succinct form. The legitimacy prong now

requires suspect regulations to “substantially advance

legitimate state interests;” while the economic impact

prong examines whether they “den[y] an owner economi-

cally viable use” of property. Agins v. City of Tiburon,

447 U.S. at 260. This Court’s most recent refinement of

these standards was provided in Nollan v. California

Coastal Commission, a landmark regulatory takings case

which is completely ignored by the court below. Nollan

sharpened the legitimacy prong of the two-part test to

include an inquiry into whether the regulated use of

property is responsible for causing the harm which the

regulation addresses. Nollan, 483 U.S. at 834-37. Even

more significantly, Nollan expressly requires courts to

apply a heightened level of scrutiny in examining the pur-

pose and impact of suspect regulations. Id. at 834 n.3.

Over the past decade the two-fold legitimacy /impact

inquiry has taken on the sharpness and prominence typ-

ically associated with a “bright-line” threshold test. In

keeping with this development, this Court has struck

down measures violating either prong of the two-part test

without further inquiry. The Nollan decision clearly illus-

trated that when a regulation fails to substantially

14

advance a legitimate government interest a taking occurs

regardless of the economic impact on the property owner.

Conversely, this Court has also made it clear that regula-

tions which deprive an owner of economically viable use

of property violate the Takings Clause regardless of the

merits of the state interests they may advance. Hodel v.

Virginia Surface Mining and Reclamation Association, Inc.,

452 U.S. 264, 295-96 (1981); Kirby Forest Industries, Inc. v.

United States, 467 U.S. 1, 14 (1984). |

The emergence of the bright-line legitimacy /impact

threshold test does not mean that other considerations

have no place in modern regulatory takings analysis. If a

regulation violates either prong of the threshold test, com-

pensation is always required under the Takings Clause.

However, if the challenged measure survives the legit-

imacy/impact inquiry, it is then subjected to an equitable

weighing of more general considerations to determine

“when ‘justice and fairness’ require that economic inju-

ries caused by public action be compensated by the gov-

ernment.” Penn Central, 438 U.S. at 124. Among the

factual issues that may enter this equitable weighing are

the regulation’s interference with distinct investment-

backed expectations and the extent to which a particular

owner is singled out to bear the full costs of what should

rightfully be a general public burden.

The crucial point is that this generalized equitable

analysis need only come into play, if at all, after it is

determined that the challenged measure survives the

bright-line tests. If a challenged regulation fails to sub-

stantially advance a legitimate interest or deprives an

owner of economically viable use of property, that mea-

sure violates the Takings Clause without regard to any

15

other factors and without recourse to “balancing” or

“exceptions.”

B. South Carolina’s Beachfront

Management Act Clearly Violates at

Least One of This Court's

Threshold Tests for Regulatory Takings

The most obvious infirmity of the Beachfront Man-

agement Act is its failure to clear the second prong of this

Court’s threshold test for regulatory takings. The trial

court in the present action made a specific factual deter-

mination that the setback lines deprived Lucas of “any

reasonable economic use of the lots,” and rendered the

lots “valueless.”

This factual determination is completely dispositive

of the question at issue. This Court’s modern jurispru-

dence of regulatory takings is unambiguous. A taking

occurs “if the ordinance . . . denies an owner economi-

cally viable use of his land.” Agins, 447 U.S. at 260. See

also Hodel v. Virginia Surface Mining and Reclamation Asso-

ciation, Inc., 452 U.S. at 295-96 (“[a] statute regulating the

uses that can be made of property effects a taking if it

‘denies an owner economically viable use of land’ ”)

(quoting Agins v. Tiburon, 447 U.S. at 260).

This second prong of the threshold takings inquiry

does not refer to a “balancing” of public and private

interests. Indeed, it rests on an implied presumption that

the challenged legislation falls within the legitimate

authority of the state and thereby advances some public

benefit, perhaps of great magnitude. The nature of the

state’s action is a critical inquiry only in connection with

16

the question of whether the first prong of the regulatory

takings test has been satisfied. A finding of legitimacy

satisfies the two-part threshold test only when coupled

with a finding of no deprivation of economically viable

use. If there has been such a deprivation, a taking has

occurred on that ground alone regardless of the nature of

the state’s action.

The issue under this prong of regulatory takings

doctrine is not whether a regulation’s benefits are legiti-

mate, or even whether they are worth the costs, but

whether these benefits have been a quired by stripping

away individual property rights protected by the Consti-

tution. Since Pennsylvania Coal such means are never

acceptable, regardless of the ends to be achieved.

C. This Court Has Never Recognized a

“Public Harm” Exception to the Takings

Clause Broad Enough to Permit the

Deprivation of All Economically Viable Use

of Property Without Payment

of Just Compensation

The court below erroneously holds that this Court’s

carefully structured tests for regulatory takings may be

overridden “when the regulation exists to prevent serious

public harm.” Lucas, 404 S.E.2d at 899.

As Professor Michelman has pointed out, such a

broad exception to the Takings Clause would be a logical

absurdity, since in most cases it is only a matter of seman-

tics whether regulations are characterized as preventing

public harms or bestowing public benefits. Michelman,

Property, Utility, and Fairness: Comments on the Ethical

17

Foundations of “Just Compensation” Law, 80 Harv. L. Rev.

1165, 1196-1201 (1967). Moreover, nothing in this Court's

modern regulatory takings doctrine supports such an

exception. The contrary holding by the court below

springs from a fundamental misconception of the histori-

cal evolution of regulatory takings law.

1. Meaningful Constitutional Interpretation

Is Dependent on Historical Context

The evolution of complex constitutional doctrines

seldom follows a simple linear path that can be traced

with precision through the cases from the Founding

down to the present day. The interpretation of key consti-

tutional provisions typically goes through periods of flux

as courts struggle to find the best “match” between the

protections intended by the Founders and the social,

economic, and political context in which disputes arise.

Professor Ackerman describes this process as one of

multigenerational synthesis. Ackerman, Constitutional Poli-

tics/Constitutional Law, 99 Yale L.J. 453, 517 (1989). Mean-

ingful interpretation must synthesize the text of the

Federalist Constitution with shifts in the “constitutional

status quo” marked by such historical watersheds as

Reconstruction and the New Deal. Id. at 516-21.

A corollary of this problem is that the contemporary

relevance of any decisicn is at least partly a function of

the era in which it was generated. To ignore historical

context and conflate legal doctrines from different eras

and different stages of development is to invite interpre-

tive incoherence.

18

The decision below is a paradigm example of this

fallacy. By resorting to the 19th Century due process rule

of Mugler v. Kansas to dispose of a modern regulatory

takings issue, the court below arrives at a result consist-

ing of equal parts historical absurdity and doctrinal mud-

dle.’

2. Mugler and Its Progeny

Employ an Outdated, Single-Pronged

Due Process Test Wholly Inappropriate

to Modern Regulatory Takings Claims

The basic recognition that private property can be

taken by excessive regulation was slow to evolve in the

courts. During the early development of American consti-

tutional law “a purely physical conception of the process

' The doctrinal muddle is also reflected by the Washing

Supreme Court's decision in Presbytery of Seattle v. King County,

787 P.2d 907 (Wash. 1990). In that case, the W ngton court

ruled that a regulation which “safeguards the | public interest i

health, safety, the environment or the fiscal integrity of an

area” is insulated from any takings analysis, provided the

sopeiation Cuss ast desteay Ge ight to possess, to exclude

thers, or to dispose of the property. Id. at 912. The Presbytery

of Seattle analysis is inconsistent with this Court's taking juris-

prudence and improperly limits regulatory takings to only a

narrow band of government actions. The South Carolina

Supreme Court in the case at bar cited Presbytery of Seattle in

support of its “public harm” exception. Lucas, 404 $.E.2d

at 902 n.7. This Court should reverse the decision of the South

Carolina Supreme Court and, in so doing, express its disap-

proval of the analytical framework expressed in Presbytery of

Seattle. See generally Comment, Taking Issue with Takings: Has the

Washington State Supreme Court Gone Too Far?, 66 Wash. L. Rev.

545 (1991).

19

of condemnation was amply sufficient.” Cormack, Legal

Concepts in Cases of Eminent Domain, 41 Yale L.J. 221, 225

(1931). Early federai takings cases almost always dealt

with physical encroachments—-the outright seizure of

property by government, or physical interference with

the utility or accessibility of land. See, ¢.g., Pumpelly v

Green Bay & Mississippi Canal Co., 80 U.S. 166 (1872)

(flooding); Richards v. Washington Terminal Co., 233 US.

546 (1914) (smoke damage).

As government regulation of property grew more

extensive and invasive, the Takings Clause began to take

on relevance as a potential source of protection for prop-

erty owners. However, the argument that property regu-

lations might require compensation under the F fth

Amendment was simply not entertained by pre-20th Cen-

tury courts.

This legal environment is the key to interpreting such

decisions as Mugler v. Kansas. In Mugler, the State of

ansas passed legislation driving Peter Mugler out of

what had been a perfectly lawful business, thereby

destroying the value of his productive capital. The

Supreme Court found the law constitutionally sound,

since “the public health, the public morals, and the public

safety, may be endangered by the general use of intoxicat-

ing drinks.” Mugler, 123 U.S. at 662.

Taken out of historical context and measured by the

regulatory takings doctrine of 100 years later, Mugler

seems inexplicable. In its proper context, however, it is

obvious that Mugler can have no relevance to regulatory

takings law whatever. The case was appealed to the

Supreme Court as a due process violation. (Indeed, the

20

Takings Clause had not yet been deemed “incorporated”

into the Fourteenth Amendment for application to the

states. See Chicago, Burlington & Quincy Railroad v.

Chicago, 166 U.S. 226 (1897)). The operative language in

Mugler is the standard due process analysis of the period.

The Mugler Court was concerned with only the question

of whether the regulation was a legitimate exercise of the

state’s police powers. The impact of the regulation on

Peter Mugler’s property was not considered since this

issue was not relevant to a due process inquiry.

Having concluded that the Kansas ordinance was a

valid exercise of the police power, the Mugler Court's

review of the case was, for all intents and purposes,

concluded. The economic impact prong of modern regu-

latory takings analysis was not applied for the self-

evident reason that the doctrine of regulatory takings did

not yet exist. For the same reason, Mugler cannot be

coherently interpreted as an “exception” to the regulatory

takings principles that Justice Holmes would first speak

to in Pennsylvania Coal some 35 years later.

3. This Court Has Never Upheld

a Regulation That Deprives an Owner of

All Economically Viable Use of Property

Mugler v. Kansas cannot sensibly be interpreted as an

exception to this Court’s regulatory takings doctrine,

since it was handed down during an era prior to the

recognition that regulatory takings could occur at all. It is

significant however that this Court has never upheld,

even in Mugler and its progeny, the validity of a regula-

tion that deprives an owner of all economically viable use

21

of property. Thus, even if the Mugler-era cases are

thought to retain some vitality in the modern era, they

could not possibly stand for the broad “nuisance” ratio-

nale embraced by the court below.

South Carolina’s Beachfront Management Act was

found to deprive petitioner of “any reasonab e economic

use” of his property, rendering it “valueless.” Order of

the Court of Common Pleas at 5. The roster of this

Court’s decisions reveals not a single case in which such

a total nullification of property rights has been upheld

against a takings challenge.

The court below cites five cases in support of its

assertion of a broad “public harms” exception to the

Takings Clause: Mugler, 123 U.S. 623; Hadacheck v. Sebas-

tian, 239 U.S. 394 (1915); Miller v. Schoene, 276 U.S. 272

(1928); Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962);

and Keystone Bituminous Coal Association v. DeBenedictis,

480 U.S. 470. However, even a superficial review of these

cases reveals that not one of them involved the complete

diminution of economically viable use of property.

In Mugler, the plaintiff did not contend, nor did the

Court conclude, that no structures could be built on

Mugler’s property, or that the regulation permitted no

economically viable use of the land.

In Hadacheck, a city ordinance prohibited the manu-

facture or burning of brick within described geographical

limits. The Court was thus not presented with a depriva-

tion of all economically viable use of property, because

the plaintiff was free to construct residences or other

types of manufacturing enterprises on the property.

22

In Miller, the State of Virginia ordered plaintiffs to

cut down a large number of ornamental cedar trees to —

prevent the communication of a plant disease to apple

orchards in the vicinity. Plaintiffs were, however, entitled

to use the felled trees and to make any other economi-

cally viable use of their property.

In Goldblatt, a local ordinance regulated dredging and

excavating on private property. The Court found no evi-

dence “which even remotely suggests that prohibition of

further mining will reduce the value of the lot in ques-

tion.” Goldblatt, 369 U.S. at 594.

Finally, in Keystone, the State of Pennsylvania’s Subsi-

dence Act restricted mining practices associated with

damage to residential and other structures. In concluding

that the Act did not effect a taking of piaintiffs’ property,

this Court noted that plaintiffs had “failed to make a

showing of diminution of value sufficient to satisfy the

test set forth in Pennsylvania Coal and our other regula-

tory takings cases.” Keystone, 480 U.S. at 492-93.

The schism between the Keystone majority and the

dissent focused on this very point. Chief Justice Rehn-

quist argued that the property in question was the coal

which the Subsidence Act prohibited plaintiffs from min-

ing. Id. at 514 (Rehnquist, C.J., dissenting). Since the Act

completely deprived plaintiffs of economically viable use

of this coal, the Chief Justice regarded the Act as a taking

despite its “public harm” or “nuisance” rationale: “(W]e

have not accepted the proposition that the State may

completely extinguish a property interest or prohibit all

use without providing compensation.” Id. at 513 (Rehn-

quist, C.J., dissenting). The Keystone majority found no

23

taking precisely because they adopted a broader view of

the property rights at issue.

While none of the cases cited by the court below

support its assertion of a broad “nuisance” exception to

the Takings Clause, its reading of Keystone does the great-

est violence to the record. By combining the minority’s

analysis of the economic impact of the Subsidence Act

(complete deprivation of use) with the majority's conclu-

sion (no taking), the South Carolina Supreme Court

arrived at an interpretation of Keystone wholly at odds

with the views actually set forth by any member of this

Court.

4. The Historical Significance

of Pennsylvania Coal

This Court’s concern solely with the validity of chal-

lenged property regulations, without consideration of

their economic impact, ended in 1922 with Pennsylvania

Coal Co. v. Mahon, 260 US. 393. As discussed above,

Pennsylvania Coal ushered in a new era by recognizing

that otherwise legitimate police-power regulations may

violate the Takings Clause through their impact on pri-

vate property rights. In takings jurisprudence, Pennsylva-

nia Coal marked a shift in the constitutional status quo as

pronounced as Reconstruction or the New Deal. See

Ackerman, supra.

The court below places great significance on the

unremarkable proposition that Pennsylvania Coal did not

“overrule” Mugler. Lucas, 404 S.E.2d at 900-01 (citing Key-

stone, 480 U.S. at 490-91). Such a narrow reading com-

pletely misses the significance of the decision. The

24

Court’s concern in Pennsylvania Coal was not to “over-

rule” the due process jurisprudence of a bygone era.

Rather, the justices were engaged in the larger task of

forging a new line of constitutional jurisprudence appro-

priate to the postindustrial world of the 20th Century.

Pennsylvania Coal is a masterful synthesis through which

the original protections of the Takings Clause are made

relevant to the modern social-political context of inten-

sive and often predatory regulation.

The general principle laid down by Pennsylvania Coal

was that courts must consider the economic impact of

regulation, as well as its validity, in determining whether

a taking has occurred. Pennsylvania Coal, 260 US. at 413.

Justice Holmes realized that the transition to this princi-

ple would not occur as a clean, sharp break with the past.

He recognized the difficulty of applying the new

approach to exceptional emergencies “like the blowing

up of a house to stop a conflagration.” Id. at 415. (Miller v.

Schoene is a prime example of such an emergency ratio-

nale-—a decision standing at least as much “upon tradi-

tion as upon principle.” Pennsylvania Coal, 260 US.

at 416.) Nevertheless, the general direction of regulatory

takings doctrine was clear.

The plain historical significance of Pennsylvania Coal

is that the Court turned its back on the single-focused,

19th Century due process inquiry of Mugler and its prog-

eny and embraced a new paradigm for the modern era.

The modern takings analysis has been refined and sharp-

ened over the past 70 years but it is unthinkable that this

court below—to the outmoded jurisprudence of a pre-

vious age.

25

EVEN IF THIS COURT WISHES TO ESTABLISH A

NOXIOUS USE EXCEPTION TO THE TAKINGS

CLAUSE, THIS EXCEPTION COULD NOT

REASONABLY BE HELD TO ENCOMPASS

PETITIONER’S CONSTRUCTION OF A PERSONAL

RESIDENCE ON HIS OWN LAND

Even if this Court opts for the creation of a “noxious

use” or “nuisance” exception, the facts of the case at bar

cannot be easily brought within such an exception.

A nuisance occurs when the use of property has

noxious impacts on neighboring landowners. In the pre-

sent case, petitioner has been prohibited from building a

house on his own land. Any “noxious effect” of this

activity, including erosion and storm damage, could eas-

ily be restricted to petitioner’s own property with no

impact on the property of adjoining landowners.

The Beachfront Management Act, quoted extensively

in the opinion below, primarily addresses the need to

protect the South Carolina coastline from erosion. It does

not, and cannot, portray the construction of a private

residence as a “noxious” use of property on a par with

the maintenance of an urban brickyard or gravel quarry.

As was recently observed by the dissent in Esposito v.

South Carolina Coastal Council, 939 F.2d 165 (4th Cir. 1991):

“The rapidity with which rental beach houses

are gobbled up by the public causes me to doubt

that they are, at least yet, generally regarded as

‘tantamount to a public nuisance.’ . . . [T]he

Act’s gradual forty-year retreat scheme, rather

than immediate destruction of all offending

structures, is clear proof that the . . . residences

26

are not dire threats to public safety and wel-

fare.” Id. at 173 n.2.

Given this reality, the Beachfront Management Act’s con-

clusory references to the protection of “life and liberty”

appear to be mere verbiage. Such boilerplate declarations

cannot survive the close scrutiny required by this Court

in Nollan.

The right of an individual to build a private resi-

dence on his own land is a fundamental attribute of

liberty, grounded in natural law and transcending the

existence of the state. As this Court recognized in Nollan,

this fundamental right “cannot remotely be described as

a ‘governmental benefit.’ ” Nollan, 483 U.S. at 833 n.2. Still

less can it be legislatively redefined as a noxious use, in

order to evade the clear requirements of the Takings

Clause.

CONCLUSION

In an era of increasingly complex and pervasive envi-

ronmental regulations, this Court should reaffirm the pre-

eminence of the United States Constitution. As laudable

as the objectives of the Beachfront Management Act may

purport to be, it must still be recognized that “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, 260 U.S. at 416.

27

For this reason, and the reasons set forth above,

amicus respectfully requests that this Court reverse the

decision of the court below.

DATED: January, 1992.

Respectfully submitted,

RONALD A. ZUMBRUN

*Epwarv J. CoNNok, JR.

R. S. RAvForD

*Counsel of Record

Pacific Legal Foundation

2700 Gateway Oaks Drive,

Suite 200

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation