Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

No. 91-453 1

In THE

of me United States

OcToBER TERM, 1991

DAVID H. LUCAS,

Petitioner.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On : Writ of ¢ Certiorari ri To The

Supreme Court Of South Carolina

BRIEF AMICUS CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION AND THE

SOUTH CAROLINA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER

JOHN J. RADEMACHER JAMES D. HOLZHAUER

General Counsel Counsel of Record

RICHARD L. KRAUSE MICHAEL F. ROSENBLUM

Assistant Counsel CLIFFORD M. SLOAN

AMERICAN FARM BUREAU TIMOTHY 8. BISHOP

FEDERATION MAYER, BROWN & PLATT

225 Touhy Avenue 199 South LaSalle Street

Park Ridge, Illinois 60068 Chicago, Illinois 60603

(708) 399-5700 (312) 782-0600

Counsel for Amici Curiae

Midwest Lee Printing Co., Chieago 60611, (312) 321.0220

fmm

‘4 Aly

Whether the a Clause of the Fifth Amendment

mpensation when i oe

ill

TABLE OF CONTENTS

QUESTION PRESENTED ...................

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

INTEREST OF THE AMICI CURIAE .......

GEG GE Sense ccccacccccccces.

INTRODUCTION AND SUMMARY

TCC rah enesccccccccceccccces

Eee Sd ces Sssccccsccccesss

I.

Il.

The South Carolina Supreme Court’s Decision

Should Be Reversed Because It Is Wel! Estab-

lished That Regulatory Destruction Of All

Economically Viable Use Of Property Is A

Taking Regardless Of The Regulation’s Pur-

RTC ERE sas scesocccescccsecces

The Takings Clause Should Be Interpreted To

Require Just Compensation For All Regula-

tory Deprivations Of Property ............

A. The South Carelina Supreme Court Con-

strued The Police Powers Or Nuisance

Exception So Broadly As To Eviscerate

The Requirement Of Just Compensation

For Regulatory Takings .............

B. The Text, History, And Constitutional

Role Of The Just Compensation Clause

Are Inconsistent With The Recognition Of

Any Police Powers Or Nuisance Excep-

EMEC CCE eGecedcacpocccccccce

ol

11

16

iv

C. Any Nuisance Exception Should Be

Limited To Circumstances In Which Gov-

ernment Regulates To Prevent Harmful

And Direct Physical Invasions Of Other

SOE DOMED Sco 0c pkeeececusesses 21

CRN «8 05 0cnnncdvesenaekouunasumas 26

Vv

TABLE OF AUTHORITIES

CASES: PAGE

Agins v. Tiburon, 447 U.S. 255 (1980) ....... 8,9, 13, 15

Andrus v. Allard, 444 U.S. 51 (1979) ......... 15, 24

Armstrong v. United States, 364 U.S. 40 (1960) .. 6, 20

Bowditch v. Boston, 101 U.S. 16 (1879) ........ 18

Bryant v. Lefever, 4 C.P.D. 172 (1878-1879) .... 25

Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226

DEE Sovendavecevanedateuusalanscccvsexes 9

Christy v. Lujan, 490 U.S. 1114 (1989) ........ 15

Curtin v. Benson, 222 U.S. 78 (1911)......... 23

Dugan v. Rank, 372 U.S. 609 (1963) .......... 17

Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878) . 23

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)... 8, 11

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

Co Pre Ce oe rere Tee Pe eee 10, 15, 24

Hodel v. Irving, 481 U.S. 704 (1987) ......... 9, 15, 17

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 458 US. 2664 (196)) .... nec ccscccss 8

Hudson Water Co. v. McCarter, 209 U.S. 349

EE SERS Akad dh ES ES UA AES KOESEERD SSE es 9

Keystone Bituminous Coal Ass’n v. DeBenedictis,

ee Se See UN 6 oh bee cceecdnnckendaces passim

Miller v. Schoene, 276 U.S 272 (1928)...... 10, 14, 23

Monongahela Navigation Co. v. United States, 148

ek EC Cc te hoods Roca ueekehexenes 20

Vv ]

Morgan v. High Penn Oil Co., 238% N.C. 185, 77

EE WE SUED Pinwcsceoseveesesctcdkeus 24

Mugler v. Kansas, 123 U.S. 623 (167) ..... 10, 14, 24

Nollan y. California Coastal Comm'n, 483 U.S.

Pe sie rcvteecusceseeeaunes 9, 12, 13, 20, 23, 24

Penn Central Transp. Co. v. New York City, 43%

Se eee ers ee ee Perey passim

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

PE Cor cuinvkhescneen caeeunnes 9, 10, 15, 16, 18, 20

Ruckelshaus v. Monsanto Co., 467 U.S. 986

EE. ene so ebkede de cee ous oe hae eT eresae ok 17

United States v. Calter, Inc., 344 U.S. 149 (1952) . 1X

United States v. General Motors Corp., 323 U.S.

I es cee are nla ee a ae & 16

United States v. Lynah, 188 U.S. 445 (1903) ... 7, 10, 20

Village of Euclid v. Ambler Realty Co., 272 U.S.

CE 6.6 psa Ve cre ce sen taceuneresasanecs ly

Williamson Planning Comm'n v. Hamilton Bank,

GPe TAR BO MUD 6 occ eccduccgnevncaceess 10)

STATUTES AND REGULATION:

S.C. Code Ann.

$§ 48-39-10 et seq. (1988) ........... cee 3

§ 48-39-250 (Cum. Supp. 1990) .............. 3.4

§ 4%-39-260 (Cum. Supp. 1990) .............. 3

§ 48-39-290 (Cum. Supp. 1990) .............. 1]

Evrecutive Order No. 12630, 53 Frp. Reo. 59

Cs eso is oxen s er asad bb iia es 25

Vil

MISCELLANEOUS:

Epstein, Nuisance Law: Corrective Justice and Its

Utilitarian Constraints, & J. LEGAL Strub. 49

SN Shee nccude Henan ee bases veveuueeeas 22

R. Epstein, TAKINGS (1985) ...................

Epstein, Takings: Descent and Resurrection, 1987

ON SA FD eek cacsenbereveeaseedes ac

FEDERALIST No. 10 (Madison) (C. Rossiter ed.

Ep ARR ont ARS BAe ren Ay oma MR RAM Se

FEDERALIST No. 54 (Madison) (C. Rossiter ed.

IRS a bait tats os Sree hae 10 ee rae aha

Madison, Speech Proposing the Bill of Rights, 12

THE PAPERS OF JAMES MADISON 201 (C. Hob-

son & R. Rutland eds. 1979) ..............

McConnell, Contract Rights and Property Rights:

A Case Study in the Relationship Between In-

dividual Liberties and Constitutional Structure,

Oe GAR, Ea: TOG. Te Ge i ccc wecccucesess

Michelman, Property, Utility, and Fairness: Com-

ments on the Ethical Foundations of “Just

Compensation” Law, #0 Harv. L. Rev. 1165

NN ail ii occas so cuabu bo wes aw ebeer ee

J. Nedelsky, PRIVATE PROPERTY AND THE LIMITS

OF AMERICAN CONSTITUTIONALISM (1990) ....

W. Prosser & W. Keeton, THe LAW or Torts (Sth

Oi NU Oma fa ei see ad ie wae ele ale

tadin, Property and Personhood, 34 STAN. L.

er, rt cals 64 oka Meekae ium

tose, Mahon Reconstructed: Why the Takings Is-

sue is Still a Muddle, 57S. Cau. L. Rev. 561

FE 64 ach cvacdsh cb casdesvuvesawheakes es

17

1x

12, 17

Vili

Sax, Takings and the Police Power, 74 YALE LUJ.

UIE ACh gre i ate

Stoebuck, A General Theory of Eminent Domain,

47 Wasn. L. Rev. 553 (1972) ..............

W. Stoebuck, NONTRESPASSORY TAKINGS IN EMI

Re NED od bb ook bcckccwccdares

J. Story, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED StaTEs (R. Rotunda & J. Nowak

eds. 1987)

So O20. F 8 282 OO 6 68 e ee 68 6:6 82a 2 6 8 28 8 86 OO @

12

18

18

18

No. 91-453

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

DAVID H. LUCAS, aif

Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of South Carolina

BRIEF AMICUS CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION AND THE

SOUTH CAROLINA FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONER *

INTEREST OF THE AMICI CURIAE

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit Cor-

poration Act of the State of Illinois. It has its principal

offices in Park Ridge, Illinois. AF BF was founded to pro-

* Written consents of the parties to the filing of this brief have

been filed with the Clerk.

nericar Farm Bureau Federation and the South

SCFBF own or lease er amounts of property, and

ee ee ee ee there-

: y interested in me paper S retatior

tion. The | South Carolina Supreme Court's s expansion of

the ‘ireumstances in which a state may effectively dis-

possess an owner of his or her property without paying

pensation is contrary to the interests of AFBF, SCFBF,

STATEMENT

Amendment to the United States Constitu-

tion provides that “ ‘private property [shall not] be taken

for public use, without just compensation.” The question

in this case is whether a state may totally destroy the

value of a person's property by imposing land use restric-

tions, yet evade this constitutional obligation to pay com-

33, 36. Lucas paid a total of $975,006

—s out a mortgage on which there was 3495 ,000

an structure ensept a walkway and smal;

system.

chfront Management Act, Act No. 634, $$ 1, 2 (codified

. Code Ann. A 48-39-250, 48-39-260 (Cum. Supp.

cic cng » South Carolina coast’s | ne

tecting “life and poupenty by serving as a aun tender,”

~

natura health environment” for the state’s citi.

zens. Id. Ҥ 48-39-250(1); Pet. App. 4-5.

itioner filed suit b aguinat the SCCC i in the South

The Court of Common Pleas held that the SCCC’s aec-

yursuant teo-the-Act had eliminated Lucas’ ‘“‘unre-

stricted right of use” of his land (Pet. App. 37) and

— had deprived him of “the essential elements of

wners hip” (Pet. App. 39), infringing on “pr vate property

raditional sense of the term’ (Pet. App. 38).

yermane iibiting construction on Lucas’ two

sate, the Cour found, ‘the SCCC “deprives Lens be any

velustons” (Pet. App. 37), 80 that “(the lamag |

two lots by virtue of the restrictions prohibiting any form

“lopment is total.” Pet. App. 38. E

tose cause it inter-

pated this Court’ 8 decisions to mean “that regulatory ac-

uvity by a governmen

al agency which denies an owner

omically viable | use of “ land amounts to a taking

under the Fifth Amendmer . for which just compen-

sation must be paid” (Pet. i 40), even where the regu-

lation “was enacted to... benefit . . . the general pub-

lie” (Pet. App. 38), the Court of Common Pleas held it

was “manifest that the imposition of the setback lines by

the [SCCC] hals] resulted in a total taking of Lucas’ two

beachfront lots.” Pet. App. 40. The court ordered re-

spondent to i Seer Lucas in the total amount of

$1,232,387.50, caleulated as the sum of the fair market

value of the lots on 1 July 1, 198%, and real property taxes

and mortgage interest paid by Lucas since that date. Pet.

—h—

App. 40. In turn, Lueas was to tender a clear deed to

the lots to the SCCC. Pet. App. 40-41.

, ane owner of ‘all peer emg vibe” use’ , of his

property.” Pet. App. 9. See also Pet. App. 11-12. Thus,

harm” (Pet an 8), the court held that the bar on de-

jopmen of Leeas' property did not amount to a com-

nbers of the court dissented. They concluded,

primary purpose of the Act was not to pre-

blic nuisance but to eliminate “activities and ef-

fects” that ontd.ast “fairly be considered ‘noxious’ ” (Pet.

App. 27), and, second, that because the state had elimin-

ated all “economically viable use” of Lucas’ land, a taking

had occurred, Pet. App. 30.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. The protection of individual property rights was a

core concern of the Framers of the Constitution and the

Bill of Rights. The Framers regarded it, in fact, as “the

first object of government. ” FEDE RALIST No. 10, at 78

Compensation (or Takings) Clause is one of the | guar.

antees at the heart of the constitutional design to pro-

tect private property rights.

‘ —_— command that t “pri:

vate property [shall net] mah public use, without

and justice, chestd be borne bey tho pubthe us 0 whelas”

Armstrong v. United States, 364 U.S. 40, 49 (1960). For

the common good, individuals might properly be forced

to give up the use of their property—but only upon fair

preme Court has turned this design on its head, substi-

tuting a scheme in which government must compensate

an individual when it regulates so as to deprive him of

his property, except when the taking can be broadly con-

strued as “prevent{ing] serious injury to the community.”

Pet. App. 15. “{Nlearly every action the government

takes” can be described as preventing some grave public

harm, see Keystone Bituminous Coal Ass'n v. DeBene-

dictis, 480 U.S. 470, 513 (1987) (Rehnquist, C.J., dissent-

proach the Takings Clause would cease to impose mean-

ingful restraints on the behavior of government officials.

2. On even the narrowest S seneng of this Court's tak-

the total regulatory destruction of land’s value ward

upon the objective of the regulation. On the contrary, this

Court has stated repeatedly ‘over the past seventy years

that a compensable regulatory taking occurs when govern-

ment destroys all economically viable use of land—regard.

allie

if ae Se E.g., me

3. Beyond this narrow ume for decision, this Court

contemplated by the Framer of the Fifth Amendme

pobre tage Cle

Amici urge this Court to reject outright the notion that

Se aeeeee Obs Seaaerees teint 6 he Sas Cunpen

sation Clause are qualified by a police powers or nuisance

exception. Nothing in the provision’s history or role in

our Constitution gives warrant to government to “ ‘in-

valde] private right under the pretext of the public

good.’ United States vy. Lynah, 188 U.S. 445, 470 (1903)

(citation omitted). Even if this Court were to recognize

an exception to the just compensation requirement—which

amici believe would be unjus' ified—it should call a firm

halt to the erosion of the Takings Clause by making clear

that any exception is limited to instances in which govern-

ment regulates nuisances that involve physical invasions,

of others’ property.

affies

ARGUMENT

; ceed Deas tte thal eae

Be Reversed Because It Is Well E ablis

Of Property Is A Taking Regardless 0} jless Of The Regula.

Purpose.

tion's

For the THRRNEES 6S ctl CRAMEED CNS ES 6 EEN

private property supplied “the clear, compelling

a instance of the limits that private rights

egitimate government.” J. Nedelsky, PRIVATE PRopERTY

AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 9

(1990). The Framers intended the Takings Clause of the

Fifth Amendment to be one of the prime guarantors

these limits. The Clause was designed to ensure thet in-

dividual rights to own, occupy, and use property —and the

liberty interests dependent upon these na teres not

be confiscated to serve transient aS ¢ concepti

of the common good. Though government rrantec

power to deprive a person of property to convert it to

public use, the exercise of this power was strictly condi-

tioned on the payment of just compensation. In this way,

the Framers struck a careful balance between individual

rights and community needs. See infra Part II.B.

For this reason, this Court has never wavered from the

position that total regulatory deprivation of the use and

value of a person's land—such as the trial court explicitly

found had occurred in this case—is always a compensable

taking. See Hodel vy. Virginia Surface Mining & Reclama-

tion Ass'n, 452 U.S. 264, 295-296 (1981) (“A statute

regulating the uses that can be made of property effects

a taking if it ‘denies an owner economically viable use

of his land... .’”), quoting Agins v. Tiburon, 447 US.

255, 260 (1980). Accord First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 316-317

(1987); United States v. General Motors Corp., 323 U.S.

siden

373, 378 (1945); Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415 (1922) (“while property may be regulated

to a certain extent, if regulation goes too far it will be

recognized as a taking’).

A state that destroys the value of a person’s land has

never been permitted to evade its constitutional obliga-

tion to compensate by pointing to the public purpose of

its regulation, even if that purpose is to prevent serious

harm to the community.’ This Court has carefully stated

and applied its regulatory takings analysis in the disjunc-

tive: “land use regulation can effect a taking if it ‘does

not substantially advance legitimate state interests, . . .

or denies an owner economically viable use of his land.’ ”’

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470, 485 (1987), quoting Agins, 447 U.S. at 260 (em-

phasis added). See also Nollan vy. California Coastal

Comm'n, 483 U.S. 825, 834 (1987); Hodel v. Irving, 481

U.S. 704, 716-718 (1987); Penn Central Transp. Co. v. New

York City, 438 U.S. 104, 127 (1978); Hudson Water Co.

v. McCarter, 209 U.S. 349, 355 (1908). In Keystone Coal,

for example, the restriction on mining at issue was de-

signed to “‘abate activity akin to a public nuisance’’ and

thereby protect the public health and welfare. 480 U.S.

at 488. This Court nevertheless declined to hold that no

taking had occurred until it had determined that there

was no evidence the regulation destroyed the profitabil-

ity of even one of Keystone’s mines, but at most required

Keystone to leave 2 per cent of its coal in the ground.

Id. at 485, 495-496. See also Penn Central, 438 U.S. at

135-137.

' The Takings Clause has been applied to the states through the

Fourteenth Amendment since Chicago, B. & Q. R.R. v. Chicago,

166 U.S. 226 (1897).

~i}-

Any other approach would be inconsistent with a prin-

cipled approach to takings jurisprudence. Government’s

physical occupation of land is almost invariably held to

be a compensable exercise of the power of eminent do-

main, whatever the purpose of the taking. See Keystone

Coal, 480 U.S. at 488 n.18. When government instead en-

tirely destroys the value of land by regulation, the eco-

nomic effect and impact on the owner’s liberty are indis-

tinguishable. See Williamson Planning Comm’n v. Hamil-

ton Bank, 473 U.S. 172, 185 (1985). Cf. United States v.

Lynah, 188 U.S. 445, 470 (1903) (when government “takes

away the use and value” of land, “it is of little conse-

quence in whom the fee may be vested”; there is a taking

even though the government does not “appropriate the

title’).

The South Carolina Supreme Court’s reliance on Mugler

v. Kansas, 123 U.S. 623 (1887), and its progeny is inap-

posite. Pet. App. 10. Mugler itself preceded this Court’s

holding that regulation can work a taking (in Pennsul-

vania Coal vy. Mahon) by more than 30 years. The other

cases rejecting takings claims that were relied upon below

uniformly concerned police power regulations that did not

totally destroy the value of property. See Hadacheck v.

Sebastian, 239 U.S. 394 (1915) (874% per cent diminution

in value); Miller v. Schoene, 276 U.S. 272 (192%) (regula-

tion required destruction cnly of ornamental cedar trees

on property); Goldblatt v. Town of Hempstead, 369 U.S.

590, 594 (1962) (no evidence “which even remotely sug-

gests that [the regulation] will reduce the value of the

lot in question”).

This Court’s cases thus firmly stand for the proposition

that government may not achieve its goals, however laud-

able, by the “complete extinction of the value of a parce!

of property” unless it pays just compensation for the tak-

ing. Keystone Coal, 480 U.S. at 513 (Rehnquist, C.J.,

po, | ee

dissenting). The value and use of petitioner’s two lots was

totally destroyed by the Beachfront Management Act. the

Court of Common Pleas found (Pet. App. 37-38, 40), and

the judgment below must accordingly be reversed.*

Il. The Takings Clause Should Be Interpreted To Re-

’ quire Just Compensation For All Regulatory Depriva-

tions Of Property.

In addition to erroneously concluding that the govern-

ment may destroy a// economically viable use of land

without paying just compensation, the South Carolina Su-

preme Court relied in this case on an expansive police

powers or nuisance exception to the just compensation re-

quirement. Although its view of this exception finds sup-

port in some of this Court’s decisions, amici believe this

interpretation of the Takings Clause is untenable and

highly damaging to the security and predictability of the

property interests the Framers intended to protect. We

urge this Court to step back from some of its prior state-

ments about the broad scope of the police powers or nui-

sance exception, and to give the Just Compensation Clause

2 The SCCC argued in its brief in opposition at the petition stage

that this Court should not reach the merits of petitioner’s claim

because petitioner had not exhausted his administrative remedies

by applying for a variance. Br. in Opp. at 5. This argument has

no merit. The Court of Common Pleas made a binding state law

determination—neither disturbed nor questioned by the South

Carolina Supreme Court—that a remand for further administrative

proceedings would not have been proper. Pet. App. 39. The SCCC

asserts that under 1990 amendments to the Beachfront Manage-

ment Act, landowners like Lucas may be able to obtain a special

permit in some instances to build seaward of the setback line. See

S.C. Code Ann. § 48-39-290(D) (Cum. Supp. 1990). Whatever the

effect of these amendments, it is clear that Lucas could not have

benefited from them between 1988 and 1990. See Furst English

Evangelical Lutheran Church, 482 U.S. at 318 (* ‘temporary’ tak-

ings which... deny a landowner all use of his property, are not

different in kind from permanent takings’’).

~ —12—

a place in our constitutional order in keeping with its text,

history and purpose.?

A. The South Carolina Supreme Court Construed

The Police Powers Or Nuisance Exception So

Broadly As To Eviscerate The Requirement Of

Just Compensation For Regulatory Takings.

The South Carolina Supreme Court held that the state’s

prohibition on development of petitioner’s oceanfront lots

fell within a ‘‘nuisance-like exception” to the just com-

pensation requirement because the state had found that

the restriction served to ‘“‘prevent serious injury to the

community.” Pet. App. 12-15. The restriction was intended

to prevent or slow erosion of a beach/dune system that

the state legislatu*# found protected life and property by

acting as a story barrier, generated tourism, and provided

habitat for wildlife and a recreation area for South Caro-

lina residents and visitors. Pet. App. 4-5.

As four members of this Court remarked in Keystone

Coal, “nearly every action the government takes’’ can be

3 Our belief that this Court should clarify elements of its tak-

ings jurisprudence is shared by leading commentators with widely

divergent views of the Clause. There is general agreement that

this Court’s decisions in this area have been confused and con-

tradictory. See, e.g., Epstein, Takings: Descent and Resurrection,

1987 Sup. Cr. Rev. 1, 4; Rose, Mahon Reconstructed: Why the

Takings Issue is Still a Muddle, 57 S. CAL. L. Rev. 561 (1984);

Radin, Property and Personhood, 34 STAN. L. REV. 957, 1002-1008

(1982); Michelman, Property, Utility, and Fairness: Comments on

the Ethical Foundations of “Just Compensation” Law, 80 HARV.

L. Rev. 1165, 1170-1171 (1967); Sax, Takings and the Police

Power, 74 YALE L.J. 36, 37 (1964). See also Nollan, 488 U.S. at

866, 867 (Stevens, J., dissenting) (“Even the wisest lawyers would

have to acknowledge great uncertainty about the scope of this

Court’s takings jurisprudence,” so that “land-use planners” are

“left guessing about how the Court will react to the fiext case,

and the one after that’’).

—13—

described as preventing some grave public harm. 480 U.S.

at 513 (Rehnquist, C.J., dissenting). Indeed, this case

amply illustrates the extreme malleability of a “nuisance-

like exception” triggered by any government action said

to prevent serious public harm. As the dissenting Justices

noted below, the Beachfront Management Act’s primary

goal is plainly to bring benefits to the state by “promoting

tourism, creating a habitat for indigenous flora and fauna,

creating a place which harbors natural beauty, and pro-

viding a barrier and buffer from high tides, storm surge,

hurricanes and normal erosion’”’—none of which “can fairly

be said to resemble a nuisance.”’ Pet. App. 27. It is clear

that, as a practical matter, the South Carolina Supreme

Court’s standard for reviewing regulatory deprivations of

property imposes no meaningful restraint on government

officials.

The South Carolina Supreme Court’s view of the scope

of a “nuisance-like exception” nevertheless finds support

in some of this Court’s pronouncements in regulatory tak-

ings cases. One articulation of the test for a regulatory

taking is that, except when it denies an owner all eco-

nomically viable use of his land, a regulation will be con-

sidered a taking only if it “does not substantially advance

legitimate state interests.”” Agins, 447 U.S. at 260. See

also, e.g., Nollan, 483 U.S. at 834; Keystone Coal, 480

U.S. at 485. In another articulation that may appear to

give the test more bite, this Court asks whether the state

is restraining uses “that are tantamount to public nui-

sances.”” Keystone Coal, 480 U.S. at 491. It seems doubt-

ful, however, whether many exercises of a state’s police

power will be held to require compensation if the test in

either of these current formulations is applied. The term

“nuisance” has meant “‘all things to all people” (W. Prosser

& W. Keeton, THE LAw or Torts 616 (5th ed. 1984)),

and public nuisances have been broadly glefined to include

sulitios

any interference with the community’s health, safety,

morals, comfort or convenience. Jd. at 644. In conse-

quence, the Court’s “‘nuisance” exception has become all

encompassing in cases where a regulatory restriction

leaves any value in an owner’s property, and the Court

has upheld regulations destructive of property rights

where the goal of regulation has been “to protect the

public interest in health, the environment, and the fiscal

integrity of [an] area’”’ (Keystone Coal, 480 U.S. at 488),

to promote a community’s “health, safety, morals, or gen-

eral welfare’’ (Penn Central, 438 U.S. at 125), or where

restrictions are “reasonably related to the implementa-

tion of a policy . . . expected to produce a widespread

public benefit.”” Jd. at 133 n.30.

In these circumstances, this exception to the just com-

pensation requirement is more aptly labeled a “police

powers” than a “nuisance” exception. Despite this Court’s

insistence that the nuisance exception is not coterminous

with the police power (Keystone Coal, 480 U.S. at 491

n.20), it is difficult to imagine any regulatory diversion

of property rights to public use that could not be said

to address a “nuisance” as this Court has defined the

~term for purposes of this exception. See Epstein, 1987

Sup. Cr. Rev. at 21. The Court has held that a wide

variety of regulatory deprivations of property did not re-

quire compensation because they were designed to pre-

vent a “nuisance,” including laws or regulatory decisions

prohibiting existing breweries from manufacturing alco-

holic beverages (Mugler, 123 U.S. 623); prohibiting an

existing brick works from manufacturing bricks, in order

to further the health and comfort of the community (Hada-

check, 239 U.S. 394); requiring the destruction of orna-

mental cedar trees harboring a plant disease that threat-

ened nearby apple trees (Miller, 276 U.S. 272); and re-

quiring that mine owners leave coal in the ground to sup-

port surface areas, though they had previously bought

from the surface owners their right to any support estate.

Keystone Coal, 480 U.S. 470. In other cases, this Court

has even gone so far as to abandon any mention of “‘nui-

sance,”” upholding uncompensated takings merely because

they amounted to exercises of the police power. Penn

Central, 488 U.S. 104 (depriving owners of landmark

building from uses of their air rights); Andrus v. Allard,

444 U.S. 51 (1979) (prohibiting sale of pre-existing parts

of endangered birds); Goldblatt, 369 U.S. 590 (prohibiting

the mining of an existing gravel pit below the water

table). But see Christy v. Lujan, 490 U.S. 1114, 1116

(1989) (White, J., dissenting from denial of certiorari)

(though “sustaining grizzly bears is a worthwhile and im-

portant governmental objective,” a statute prohibiting a

person from killing bears that are destroying his livestock

may “denly] the Fifth Amendment’s protection against un-

compensated takings”’).

The breadth that this Court has given to the nuisance

cr police powers exception—and that the South Carolina

Supreme Court gave it in this case—is unwarranted in

light of the history, explicit text, and central constitutional

role of the Takings Clause.4 Indeed, recognition of so ex-

* This Court has developed a second exception to the require-

ment of compensation for a partial regulatory taking where restric-

tions “‘secure{] an average reciprocity of advantage.” Pennsylvania

Coal, 260 U.S. at 415. This exception—really a recognition that

compensation may be in kind, provided it is “just” (see R. Ep-

stein, TAKINGS 195-196 (1985))—applies when the regulatory “bur-

den is shared relatively evenly and it is reasonable to conclude

that on the whole an individual who is harmed by one aspect of

the [regulation] will be benefited by another.” Penn Central, 438

U.S. at 147 (Rehnquist, J., dissenting). See Hodel v. Irving, 481

U.S. at 715-716. It pertains most obviously to traditional zoning

regulations. See Agins, 447 U.S. 255; Village of Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926). The “average reciprocity of advan.

tage’’ exception is not at issue in this case. Although the Court in

(Footnote continued on following preagres)

a...

pansive an exception has effectively interpreted the Tak-

ings Clause out of the Constitution as an independent

safeguard against regulatory deprivations. Under current

doctrine it has become largely duplicative of lower-tier due

process protection. This Court should heed the warning

given by Justice Holmes, speaking for the Court in Penn-

sylvania Coal, against the very expansion of the excep-

tion that has occurred:

“When th{e] seemingly absolute protection [of the

Just Compensation Clause] is found to be qualified

by the police power, the natural tendency of human

nature is to extend the qualification more and more

until at last private property disappears. But that

cannot be accomplished in this way under the Con-

stitution of the United States.”’ 260 U.S. at 415.

B. The Text, History, And Constitutional Role Of

The Just Compensation Clause Are Inconsistent

With The Recognition Of Any Police Powers Or

Nuisance Exception.

The text of the Takings Clause is unambiguous, mandat-

ing that “private property [shall not] be taken for public

use, without just compensation.”’ While amici recognize

that courts may face problems in applying even such plain

language to some marginal situations, the Clause’s four

operative concepts (“private property”; “taken”; ‘‘public

use’; and “just compensation’’) are unusually clear, es-

pecially as applied to the facts of this case. A person’s

use of his land is at the very core of the meaning of “pri-

vate property.”’ See General Motors Corp., 323 U.S. at

4 continued

Keystone Coal tentatively suggested that a nuisance exception to

the just compensation rule “is consistent with the notion of ‘reciproc-

ity of advantage’ ”’ (480 U.S. at 491), historically the two excep-

tions have been treated as quite distinct, as the just-cited passages

in Pennsylvania Coal, Penn Central, and Irving illustrate.

=| =

378 (“private property”’ encompasses not just land as a

physical thing, but the bundle of rights “to possess, use

and dispose of’’ the land); Hodel v. Irving, 481 U.S. at

716-718 (abolition of descent and devise of land a taking).

Thus, as the Court of Common Pleas held, the bar on de-

velopment at issue in this case eliminated “essential ele-

ments of ownership” (Pet. App. 39) and deprived Lucas

of “private property in the most traditional sense of the

term” (Pet. App. 38). In its literal sense, the word

“taken” certainly comprehends the diminution of the value

of land by regulation, as this Court’s entire regulatory

takings jurisprudence affirms. See Penn Central, 438 U.S.

at 143-144 (Rehnquist, J., dissenting). Cf Dugan v. Rank,

372 U.S. 609, 625 (1963).5 This Court has also given a plain

reading to the limitation that government takings must

be for “public use,”’ holding that the power to take is as

broad as the police power. Ruckelshaus v. Monsanto Co..,

467 U.S. 986, 1014 (1984). The Court he« found the con-

cept of “just compensation” similarly clear. See Dugan,

372 U.S. at 624-625 (compensation is measured by the ex-

tent of the deprivation of property, i.e., “the difference

in market value of the [property] before and after the . . .

taking’).

The language of the Takings Clause is therefore plain,

and it admits of no exception. Although government may

* Madison’s initial proposal, that “{nJo person shall be . . . obliged

to relinquish his property .. . for public use, without a just com-

pensation,”” could perhaps more easily have been construed to be

limited to physical deprivations of property. Speech Proposing the

Bill of Rights, 12 THe Papers or JAMES MADISON 201 (C. Hob-

son & R. Rutland eds. 1979). The substitution of the more expan-

sive command that property shall not be “taken” requires the

application of the Fifth Amendment to regulatory deprivations of

property. See generally Michelman, 80 Harv. L. Rev. at 11X6-

1187 (“Wordplay . . . cannot justify any sharp line of distinction

between governmental encroachments which take the different

forms of affirmative occupancy and negative restraint’’).

-_ =

deprive a person of his property in order to put it to

public use, government’s right to do so is conditioned on

the payment of just compensation. Given the explicit com-

mand of the text, the creation of any nuisance or police

powers exception is illegitimate.

The Takings Clause’s history and constitutional role

likewise indicate that there should be no nuisance or police

powers exception to the Clause. The payment of compen-

sation when government took private property to serve

the common good was “a principle of the common law

. . . of immemorial usage’’ (Stoebuck, A General Theory

of Eminent Domain, 47 Wasu. L. REV. 553, 583 (1972)),

and the continued “protection of private property was a

nearly unanimous intention among the founding genera-

tion.”” McConnell, Contract Rights and Property Rights:

A Case Study in the Relationship Between Individual Lib-

erties and Constitutional Structure, 76 CaL. L. Rev. 267,

270 (1988). See generally J. Story, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES 510-511 (R. Rotunda

& J. Nowak eds. 1987). There is no indication that the

Framers thought a broad swathe cut through the middle

of this principle entitled government to take property

without compensation where it appeared this would bene-

fit the general public welfare.®

On the contrary, the deterioration of the nuisance excep-

tion into a constitutional loophole for property-destroying

6 It appears that the only exception consistently recognized at

common law—one standing “‘as much upon tradition as upon prin-

ciple” (Pennsylvania Coal, 260 U.S. at 416)—was for the exercise

of royal prerogative power to destroy property in the path of a

fire in order to prevent immediate harm to others. See id. at 415;

Bowditch v. Boston, 101 U.S. 16 (1879); W. Stoebuck, NONTRESPAS

SORY TAKINGS IN EMINENT DoMAIN 196 (1977). Cf. United States

v. Calter, Inc., 344 U.S. 149, 156 (1952) (“destruction of respon-

dents’ terminals by a trained team of engineers in the face of their

impending seizure by the enemy”).

a,

regulations that merely advance “legitimate state inter-

ests” (Keystone Coal, 480 U.S. at 485) is wholly incon-

sistent with the historical purpose of the Clause. The

Framers of the Constitution and Bill of Rights regarded

the protection of individual property rights as “the first

object of government” (FEDERALIST No. 10, at 78 (Madi-

son) (C. Rossiter ed. 1961)), and would have been shocked

at the notion that the Takings Clause requires little more

than lower-tier due process scrutiny. “Government,” James

Madison wrote, “is instituted no less for protection of the

property than of the persons of individuals.” Jd., FrEp.-

ERALIST No. 54, at 339. The Fifth Amendment’s Just

Compensation Clause lies at the very heart of this pro-

tection.

The Takings Clause was one of a series of protections

in the Bill of Rights guarding the individual from arbi-

trary or oppressive actions of transitory political major-

ities. The Clause disciplines government by forcing it to

weigh the benefits to the community of depriving a per-

son of his property against the constitutionally-mandated

compensation that would have to be paid for the taking.

Property could always be taken for the common good—

but only if government were prepared to pay compensa-

tion out of the common purse. Hence the distrust of

government underlying our constitutional structure of

separated powers and checks and balances and our Bill

of Rights can clearly be seen at work in the Takings

Clause, which imposes a taxpayer burden to check the

excess zeal of property-envious communities. The Takings

Clause, moreover, requires the government to treat indi-

viduals with dignity by ensuring that, if government takes

the individual’s property, it must compensate him for that

significant intrusion.

Finding ‘“‘ ‘no warrant in the laws or practices of our

ancestors’ ’ for governmental “ ‘authority [to] invafde] pri-

~20—

vate right under the pretext of the public good’ ” (United

States v. Lynah, 188 U.S. at 470 (citation omitted)), this

Court has long recognized that the purpose of the Takings

Clause was to shield individual rights from government

action that would convert one man’s property to commu-

nity use. See Armstrong v. United States, 364 U.S. 40,

49 (1960) (the Takings Clause ‘‘was designed to bar Gov-

ernment from forcing some people alone to bear public

burdens which, in all fairness and justice, should be borne

by the public as a whole”); Monongahela Navigation Co.

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

“prevents the public from loading upon one individual

more than his just share of the burdens of government”’).

The nuisance or police powers exception to the just com-

pensation requirement—explained with the slogan that

“(t]here must be progress, and if in its march private in-

terests are in the way, they must yield to the good of

the community” (Hadacheck, 239 U.S. at 410)—is incon-

sistent with this purpose. The teaching of the Takings

Clause is that where “progress” is achieved by depriv-

ing individuals of property, the costs “‘must be borne by

all {a community’s] taxpayers [and not] imposed entirely

on the owners of the individual properties.”” Penn Cen-

tral, 438 U.S. at 139 (Rehnquist, J., dissenting). The car-

dinal principle that should guide interpretation of the Tak-

ings Clause is that government may not sacrifice the prop-

erty interests of some to benefit others: ‘‘a strong public

desire to improve the public condition is not enough to

warrant achieving the desire by a sherter cut than the

constitutional way of paying for the change.” Pennsyl-

vania Coal, 260 U.S. at 416 (emphasis added). See also

Nollan, 483 U.S. at 841-842.

Support for a nuisance or police powers exception to

the just compensation rule is to be found in neither the

plain language nor the structural role of the Takings Clause

=

in our constitutional scheme. We urge this Court to hold

that there is no such exception.

C. Any Nuisance Exception Should Be Limited To

Circumstances In Which Government Regulates

To Prevent Harmful And Direct Physical Inva-

sions Of Other Owners’ Property.

In light of the text, history, and constitutional role of

the Just Compensation Clause, amici question whether

any exception to the Clause’s mandate can be justified.

The Framers cannot have intended this Court to create

an exception to a specific constitutional provision unambig-

uously commanding that compensation be paid for a tak-

ing. Any exception would derogate from the origina! pur-

pose of the Clause to inhibit takings and prevent their

use to redistribute property from individuals to the com-

munity at large.

Nevertheless, amici recognize that the Clause “has not

always been read literally” (Penn Central, 438 U.S. at

142 (Rehnquist, J., dissenting)), and that a nuisance or

police powers exception may find support in some of this

Court’s cases. If this Court is not prepared to abandon

the exception entirely and return to the original mean-

ing of the Takings Clause, it should at least construe the

exception much less expansively than did the South Caro-

lina Supreme Court.

A broad police power exception would make a mockery

of the Fifth Amendment’s just compensation dictate, as

we have already explained, reducing it to a mirror image

of due process and a shadow of its intended role as an

independent and stringent limitation on the way govern-

ment may treat its citizens. See supra Part II.A. It would

be no more acceptable to ground an exception in state

nuisance law. The law of private nuisance is “the least

systematic area of the tort law” and a “dumping ground”

29

for actions that “do not neatly fit into any recognized doc-

trinal niche.” Epstein, Nuisance Law: Corrective Justice

and Its Utilitarian Constraints, 8 J. LEGAL Stup. 49, 49

(1979). The law of public nuisance is even more uncertain

and incoherent, with states able to label most any private

action lying within the police power as a public nuisance.

W. Prosser & W. Keeton, THE Law or Torts 643-645.

It cannot be that the scope of the Takings Clause’s pro-

tection of individual property rights is subject to the

vagaries of state private or public nuisance law, and that

the level of protection varies according to the jurisdic-

tion in which an aggrieved owner tinds himself. That

would in effect make “the just compensation requirement

. . . legislative instead of constitutional.” R. Epstein,

TAKINGS 115. As four members of this Court recognized

in Keystone Coal, the contours of any exception to the

mandate of the Just Compensation Clause must be “a

question of federal, rather than state, law, subject to in-

dependent scrutiny by this Court.” 480 U.S. at 512 (Rehn-

quist, C.J., dissenting).

If the Framers’ intentions are not to be wholly thwarted,

any reasonable nuisance exception to government’s obliga-

tion to pay compensation for deprivations of property oc-

casioned by its land-use restrictions would have to be

limited to regulations that advance the “discrete and nar-

row purposfe]”’ (id. at 513) of prohibiting an owner “from

using its property in a narrow set of noxious ways.” Penn

Central, 438 U.S. at 146 (Rehnquist, J., dissenting). Amici

submit that the nuisance exception—if there is one—should

encompass only regulations preventing uses that involve

direct physical invasions of other owners’ property. See

generally R. Epstein, TAKINGS 107-125.7

7 The issue in this case is whether government may immunize

itself from the just compensation requirement by regulating with

(Footnote continued on following page)

~23

The results of some of this Court’s leading regulatory

takings decisions can be explained by a nuisance excep-

tion limited in this manner. There was clear evidence of

such a nuisance in Hadacheck, for example, where “fumes,

gases, smoke, soot, steam and dust” had escaped peti-

tioner’s brick-making plant and had “caused sickness and

serious discomfort to those living in the vicinity.” 239 U.S.

at 408. Similarly, in Miller v. Schoene a fungal plant disease

was physically transmitted across property boundaries, be-

ing “communicated by spores” from a landowner’s cedar

trees to his neighbors’ apple trees. 276 U.S. at 278. Cf.

Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878) (uphold-

7 continued

certain ends in mind. There is no question here about the proper

standard for evaluating the means by which government chooses

to further its ends. Any nuisance exception, however, must include

standards for evaluating both government’s goals and its means

of achieving them.

In Nollan, 483 U.S. at 834-835 & n.3, this Court indicated that

the appropriate inquiry as to means is whether a land use regula-

tion “substantially advances the state’s interest, suggesting an

intermediate level of scrutiny. But Curtin v. Benson, 222 U.S. 78

(1911), suggests the inquiry should be more stringent: whether a

land use regulation is narrowly tailored to achieve the govern-

ment’s interest. In Curtin, the United States had prevented an

owner of unfenced land within a national park from grazing his

cattle upon his property, as a means of preventing the cattle from

wandering onto government-owned land. This Court held that the

government could not regulate away such “essential uses of private

property.” /d. at 86. To ensure “that no injury could result to

others,” the United States might require that an owner fence his

property to prevent “‘the trespass of his cattle on other lands,”’

or it might simply prohibit on trespasses. /bid. But it could not

constitutionally seek to prevent injury by denying the owner use

of his grazing lands.

A demanding analysis of the connection between a regulation

and the state interest, comparable to that used in assessing inva-

sions of other fundamental rights, would seem to be in keeping

with the importance the Framers’ attached to the pretection of

property rights, and to the centrality of property rights, as a prac-

tical matter, in individual lives and in our polity.

—~24—

ing ordinance abridging prior charter to transport waste

through streets, where restriction necessary to eliminate

noxious odors, disease transmission, and infestations by

insects). Keystone Coal, 480 U.S. 470, may also be ex-

plained using this nuisance test, for the removal of the

support estate would have directly caused the collapse of

the surface, which might be regarded as a physical in-

vasion.§

While at odds with the Framers’ intent that compensa-

tion always be paid for deprivations of property, a

physical invasion exception does provide a measure of pro-

tection to an individual’s enjoyment of his own property.

The test allows every owner to do what he will with his

own property—without fear of uncompensated regulatory

interference—provided that his acts do not invade another

owner's property and hence that owner’s right to make

what use he chooses of his property.

A physical invasion test also has a fair doctrinal founda-

tion. Private nuisances traditionally “are invasions of the

plaintiff's property that fall short of trespasses but which

still interfere in the use and enjoyment of land.” Epstein,

8 J. LEGAL Stub. at 53. See, e.g., Morgan v. High Penn

Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953). This

test thus captures the essence of traditional private nui-

sance law, free of the accretions that have come with nui-

sance law’s role as a repository for actions in search of

a label.

* Amici concede that not all this Court’s cases can be explained

in this manner. The decision in Mugler, 123 U.S. 623, however,

preceded the development of regulatory takings jurisprudence by

many years; and this Court has recently cast doubt on the conti-

nuing vitality of Goldblatt, 369 U.S. 590. See Nollan, 483 U.S.

at 835 n.3 (criticizing Goldblatt because it appears to assume that

“the standards for takings challenges, due process challenges, and

equal protection challenges are identical’). Penn Central and An-

drus cannot be explained as physical invasion cases.

—25—

Moreover, because a physical invasion test turns on the

existence “of a natural state of affairs’ (Epstein, & J.

LEGAL Stub. at 53)—hence on indicia that will often be

objectively determinable—it would be relatively simple to

administer. Property owners and government planners

would have clear guidance regarding the circumstances

in which land-use regulation will give rise to a constitu-

tional duty to compensate. Given modern-day pressures

on the public fise, this sort of foreknowledge of whether

a particular regulation is likely to effect a compensable

taking is of obvious benefit to government. Under current

law, however, with its lack of “any ‘set formula’ for deter-

mining when ‘justice and fairness’ ”’ require compensation

and its reliance on “ad hoc, factual inquiries’ (Penn Cen-

tral, 438 U.S. at 124), considerable uncertainty about

whether land use regulation will be held a taking is in-

evitable. See, e.g., Executive Order No. 12630, 53 Fern.

REG. 8859 (March 18, 1988).

Applied to the facts of this case, this nuisance excep-

tion would require reversal! of the South Carolina Supreme

Court’s decision. The South Carolina legislature and SCCC

found that building on lots seaward of the setback line

would cause the natural process of erosion to accelerate

or change so as to put persons and property at risk from

the ocean. No physically invasive act of the owners of

such lots is claimed to cause harm: buildings on ocean-

side lots, in and of themselves, would be “harmless enough.”

Bryant v. Lefever, 4 C.P.D. 172 (1878-1879), as quoted in

Epstein, 8 J. LeGaL Strup. at 58. It is the ferces of

nature that would be the direct and only physically in-

vasive cause of any damage to persons or property.

Finally, though petitioner has not challenged South

Carolina’s justification for the Beachfront Management

Act as being necessary to protect life and property in an

economical and effective manner (Pet. App. 4), it is clear

—~26—

that no imminent public health emergency would be threat-

ened by building single family houses on Lucas’ lots—

which have existing homes on either side (Pet. App. 36).

The Act cannot plausibly be viewed as an emergency pub-

lic health measure, but is an example of an everyday,

long-term, public policy determination, as the dissenters

below recognized (Pet. App. 27). 7~

If the state wishes to protect the property of other

owners, and preserve the integrity of the beach/dune sys-

tem for purposes like tourism and recreation, it cannot

do so by taking Lucas’ property without compensation. .

Redistributing existing property rights to serve these pur-

poses is a project that can only be undertaken out of the

public purse.

CONCLUSION

The judgment of the South Carolina Supreme Court

should be reversed.

Respectfully submitted,

JOHN J. RADEMACHER JAMES D. HOLZHAUER

General Counsel Counsel of Record

RICHARD L. KRAUSE MICHAEL F. ROSENBLUM

Assistant Counsel CLIFFORD M. SLOAN

AMERICAN FARM BUREAU TIMOTHY 8S. BISHOP

FEDERATION MAYER, BROWN & PLATT

225 Touhy Avenue 190 South LaSalle Street

Park Ridge, Illinois 6006% Chicago, Illinois 60603

(70%) 399-5700 (312) 782-0600

Counsel for Amici Curiae

JANUARY 1992