# Amicus Curiae Brief — Lucas v. South Carolina Coastal Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A23 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1003 ## Text 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. “§ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A23. Public record. Not legal advice.