Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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oupreme Court, Ws,

FlLED

No. 91-453 JAN 2

OFFiCE OF THE CLERK

IN THE

United States Supreme Court

October Term, 1991

David H. Lucas,

Petitioner,

South Carolina Coastal Council,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF SOUTH CAROLINA

BRIEF OF AMICUS CURIAE

THE NEMOURS FOUNDATION, INC.

IN SUPPORT OF PETITIONER

JOHN J. MULLENHOLZ

MULLENHOLZ & BRIMSEK

1150 Connecticut Avenue, N.W.

Suite 700

Washington, D.C. 20036

(202) 296-8000

Counsel for Amicus Curiae

Re eT a ee ee Lee ee ee eS ae Pee! fs ee eee Sel

TABLE OF CONTENTS

A. THERE WAS AN UNCONSITITU-

TIONAL TAKING OF THE LUCAS

ES ae as edb ws 0 608

B. THE TAKINGS ANALYSIS SHOULD

BE LIMITED TO THE PROPERTY

AILTUALANY APPECTED .......0005.

CONCLUSION

a ae ee, ae er we ae ee ee ee e Se ee Ss ee

“*

ii eee

TABLE OF AUTHORITIES Joint Ventures, Inc. v. Dept. of Transportation,

563 So.2d 622 (Fla. 1990)

FEDERAL CASES

FEDERAL STATUTES

Ciampitti v. United States, 22 Cl. Ct. 310

(1991)... cn vncdcetces tue nee 8, 14, 15 Federal Endangered Species Act, 16 U.S.C.A.

§§ 1531-1544 (West 1985) .............

Deltona, Inc. v. United States, 228 Ct. Cl. 476

(|) PP 13

STATE STATUTES AND REGULATIONS

Florida Rock Industries, Inc. v. United States,

791 F.2d 893 (Fed. Cir. i986) .......... 8 Florida's Local Government Compre-

hensive Planning and Land Development

Keystone v. DeBenedictus, 480 U.S. 470 (1987) 11 Regulation Act, Fla. Stat. Ann.

§§ 163.3161-3243 (Harrison 1989) .......

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1962)... we ccccsnssunee 13 Fla. Stat. Ann. § 161.053 (Harrison 1989)

Loveladies Harbor, Inc. v. United States, Fla. Stat. Ann. § 380.06 (Harrison 1987

1S CL Co. SB! (ISSR) 2 nn ete 14 & Supp. 1989 & 1990) ...............

McNulty v. Town of Indialantic, 727 F. Supp. 604 Fla. Stat. Ann. § 403.91(Harrison 1987

(4D. Fis. 1909) 2... 2 cccssee ue eee 5, 13 & Supp. 1989 & 1990) ...............

Penn Cent. Transp. Co. v. City of New York, Fla. Admin. Code Ann. r. 9J-5 (1990) .......

436 U.S. 166 (1978) «teh eens 2, 13

Fla. Admin. Code Ann. Proposed Rule

EE I

STATE CASES

Fla. Admin. Code Ann. Proposed Rule

Graham vy. Estuary Properties, Inc., 399 So.2d 1374 EE Eee

(Pia. 1961)... 3.6000 ue ae .

South Carolina's Beachfront Management Act,

S.C. Code Ann. §§ 48-39-10 ...........

The Bituminous Mine Subsidence and Land

Conservation Act, Pa. Stat. Ann.

tit. 52, § 1406.1-1406.21 (Purdon Supp. 1991)

MISCELLANEOUS

Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of

"Just Compensation" Law, 80 Harv.

SS 8) kt eer rere rerre ree

United States Supreme Court

October Term, 1991

No. 91-453

David H. Lucas,

Petitioner,

Vv.

South Carolina Coastal Council,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF SOUTH CAROLINA

BRIEF OF AMICUS CURIAE

THE NEMOURS FOUNDATION, INC.

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3, The Nemours

Foundation, Inc., files this brief as Amicus Curiae in support

of Petitioner. Letters of consent from counsel for the parties

have been filed with the Clerk.

The Nemours Foundation, a hospital foundation, is the

major beneficiary of the Alfred I. duPont Testamentary Trust

and the estate of Mr. duPont's business associate and brother-

in-law, Edward Ball. In their wills, Mr. duPont and Mr. Ball

sought to provide perpetual medical care for sick and handi-

capped children and the impoverished elderly. To carry out

their wishes, the Foundation operates three major health care

facilities:

e The Alfred I. duPont Institute - a multi-

specialty children's hospital in Wilmington,

Delaware.

° The Nemours Children's Clinic - an outpa-

tient pediatric subspecialty care center in

Jacksonville, Florida.

° The Nemours Health Clinic - an outpatient

center, also located in Wilmington, for the

elderly in Delaware.

The statistics contained in the 1990 Annual Report of

the Foundation underscore the tens of thousands of American

children and elderly who benefit from the work of these

facilities. During 1990, the medical staff at the Alfred I.

duPont Institute perfo med 4,392 surgical procedures on sick

and handicapped children in the course of managing 2,697

inpatients and over 48,000 clinic and outpatient visits. Their

colleagues at The Nemours Children's Clinic haémore than

63,000 clinic and outpatient visits. Finally, the elderly made

in excess of 62,000 visits to the health care providers working

through The Nemours Health Clinic, including 11,396 dental

visits, 4,544 audiology visits, and 10,938 eye visits, and

received more than 100,000 pharmacy prescriptions.

The medical professionals affiliated with the Founda-

tion's three health-care facilities also engage in extensive

medical research activities and have been responsible for

numerous treatment innovations. One of these is the rural

health care program established by The Nemours Children's

Clinic. It involves the coordination of several "satellite

clinics" with the Clinic's main facility in Jacksonville to bring

primary pediatric care to children in remote areas throughout

the State of Florida who might otherwise not have access to

a pediatrician.

As the major source of funding for The Nemours

Foundation, the Alfred I. duPont Testamentary Trust is one

of the largest concentrations of assets in America designated

primarily for health care. The Trust's chief asset is its

controlling interest in the St. Joe Paper Company.

Operating primarily in the State of Florida, the St. Joe

Paper Company and its subsidiaries (the Company) are

engaged in five principal lines of business:

e Forest Products - the integrated production of

corrugated containers, including the cultivation

and harvesting of pulpwood and the manufac-

ture of linerboard;

. Transportation - the operation of two rail!-

roads within the State of Florida;

° Real Estate - the ownership, management, and

development of real estate;

i) Sugar - the production of raw sugar, including

the cultivation, harvesting, and processing of

sugar cane; and

. Communications - the provision of telephone

services and telecommunications equipment.

The Company owns approximately 1.1 million acres

of real property in the State of Florida, or approximately 3%

of the land area of the State. Most of this land was pur-

chased in the 1920's and 1930's to provide funding for the

Trust and its beneficiary, The Nemours Foundation. The

Company is the largest private landowner in Florida. It owns

very large tracts in some areas, including 225,289 acres or

63% of Gulf County, Florida, and 197,099 acres or 41% of

Bay County, Florida.

A substantial portion of the Company's real property

is raw land encompassing wetlands and coastal areas. For

example, the Company owns approximately 185 miles of

frontage along rivers, bays, major lakes, and ocean beaches ~

in Florida, including almost 65 miles of nearly contiguous bay

Shoreline. The use of portions of its property has been

regulated increasingly in recent years because of possible or

perceived impact upon wetlands, coastal areas, and the natural

habitats of various wildlife species.

Thus, because earnings from the Company ultimately

Sustain its medical programs for children and the elderly, The

Nemours Foundation is directly and significantly affected by

the extensive and evolving local, state, and Federal regulation

of the Company's use of its land. Even prohibitions on using

small discrete segments of larger parcels can have a substan-

tial cumulative effect on the earnings of the Company and

therefore the funding of the Foundation's medical programs.

This is especially true in light of the continuing escalation of

health care costs in the United States.

The Nemours Foundation's situation forcefully

illustrates the sweeping impact of land use and environmental

regulation. It reveals the surprising identity of those who

could be forced to bear the burden of that regulation. It is

not always large corporate or wealthy landowners. Indeed, it

may be the sick and handicapped children and the impover-

ished elderly who, in this instance, are the Foundation’s

beneficiaries.

The Nemours Foundation is concerned that, if allowed

to stand, the South Carolina Supreme Court's decision will

exacerbate the problems of landowners. The Foundation is

already confronted by restrictive land use and environmental

statutes and regulations in Florida.

REGULATORY POLICIES IN FLORIDA

Florida landowners are subject to a variety of local,

state, and Federal land use restrictions.’ Under Florida's

Local Government Comprehensive Planning and Land

Development Regulation Act, Fla. Stat. Ann. §§ 163.3161-

3243 (Harrison 1989), municipalities and counties are

required, individually or jointly, to develop comprehensive

land use plans covering residential, commercial, industrial,

' The growth of regulatory restrictions 1s waced in pertinent Cases

See generally Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.

1981); McNulty v. Town of Indialantic, 727 F. Supp. 604 (M.D. Fila.

1989).

agricultural, recreational, conservation, transportation, and

other public uses. The provisions of the Act are deemed to

be the minimum requirements. Jd. § 163.3161. The compre-

hensive plans must also address water, soil, coastal (including

beach access), historical, scenic and wildlife conservation

issues. /d. § 163.3177. While intended to advance public

policy, a comprehensive plan mandating public housing or

open space where the landowner envisioned a commercial

development impinges on the landowner's ability to obtain

any economic return from the land. From a practical stand-

point, landowners may have to comply with varying require-

ments in each municipality or county in which they own land.

Landowners are also affected by concurrency requirements

that bar development unless and until adequate supporting

infrastructure is in place. /d. § 163.317(10)(h). If the local

infrastructure is inadequate, the landowner must either wait

until it has been upgraded or provide all of the improvements

at its Own expense.

Florida Administrative Code Rule 9J-5 makes it

difficult for landowners to make long-range plans. Fla.

Admin. Code Ann. r. 9J-5 (1990). The Rule permits amend-

ment of the comprehensive plan twice during any calendar

year. Thus, the landowner faces a moving target against

which he must develop long-range options. The Rule specifi-

cally calls for policies to protect "native vegetative communi-

ties" and endangered and threatened wildlife. As will be

discussed below, such requirements can render land commer-

cially useless.

Even if a Florida landowner can leap the local

comprehensive plan hurdle, he may also be subject to

additional requirements if his proposed development has a

"substantial impact” upon more than one county. Fla. Stat.

Ann. § 380.06 (Harrison 1987 & Supp. 1989 & 1990). In

addition to satisfying other requirements, landowners may be

required to contribute land or build public facilities in order

to win approval of a development plan. Fla. Admin. Code

Ann. r. 9J-2 (1990). Approval of development may be denied

if the authorities find that it would significantly impact

endangered, threatened, and special concern plants and

animals, beaches, dunes, etc. /d. r. 9J-2.0185(3)(c).

Construction in coastal areas is subject to even greater

restrictions. Florida Statutes Chapter 161.053 directs the

Florida Department of Natural Resources to establish restric-

tive coastal construction control lines in each county accord-

ing to the portion of the beach-dune system subject to severe

fluctuations, based on a 100-year established storm surge line.

Approval of construction seaward of the control line is

conditioned upon a number of factors, including the potential

impact of the construction on the beach-dune system, protec-

tion of sea turtles, salt-resistant vegetation, and endangered

plant communities. The developer may be required to

provide alternate access. The statute also prohibits construc-

tion seaward of the seasonal 30 year high-water line.

By way of comparison, South Carolina's Beachfront

Management Act, S.C. Code Ann. §§ 48-39-10 to 48-39-360

(Law. Co-op. 1987 & Supp. 1990), established a baseline and

a setback based upon predicted erosion over forty vears. /d.

§ 48-39-280. That Act limits construction or reconstruction

seaward of the baseline to narrow walkways, small wooden

decks, etc. Construction, reconstruction, or alteration of

structures between the baseline and the setback is restricted.

Id. § 48-39-290.

Permitting of activities in wetlands is governed

separately by Florida Statutes Chapter 403.91. Before

granting a permit, the authorities will, among other things,

consider the impact of the proposed activity on fish, wildlife,

and their habitats. Jd. § 403.918. Where wetlands are

protected, the State has encouraged municipalities and

counties to include buffer zones in their comprehensive land

use plans. The Company has experienced demands of buffers

of approximately seventy-five feet around wetland and coastal

areas.

Landowners face costly disruption when their develop-

ment plans do not conform with local or regional plans or

when they are required to contribute land or facilities.

Habitat preservation is potentially an even greater problem.

The Company has already been required to preserve habitat

for eight species of plants and animals.

Frequently, the rules and regulations regarding

activities permitted or prohibited in certain habitats, such as

wetlands, or areas where endangered or threatened wildlife

exist, are not exact. For example, the Federal Endangered

Species Act, 16 U.S.C.A. §§ 1531-1544 (West 1985), protects

species which are in danger of extinction. Federal agencies

may develop guidelines regarding development or use of

critical habitats or areas where endangered species are found,

but oftentimes decisions are made on a case-by-case basis.

Where use is not banned outright, permits must be obtained,

a difficult or frequently impossible task.’ If permits are

issued, use or development of the land is often restricted, or

? See, e.g., Ciampitti v. United States, 22 Cl. Ct. 310 (1991); Florida

Rock Industries, Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986)

a portion of the land is set aside, as a condition of obtaining

the necessary approvals.

Proposed Florida regulations would mandate stringent

onsite and/or offsite preservation and, in some cases buffers,

for a variety of animals and plants. For example, the pending

Upland Vegetation and Wildlife Policy rule would require

100% onsite habitat preservation for an endangered species;

30% onsite, and 60% offsite preservation for certain threat-

ened animals and preservation of nests along with a 500-foot

buffer and forage area for certain threatened birds.’ An

analysis of the draft rule suggests that, if adopted, the

regulation could affect one million acres of developable land.

Another prime example is the draft Gopher Tortoise

Incidental Take Rule,* which would require an "incidental

take permit" before land could be subdivided or developed if

there were as few as ten gopher tortoise burrows located on

five acres of land in South Florida or 20 acres in North

Florida.” The landowner would have to provide a 50-foot

buffer (0.18 acre) for each burrow. If the tract was too small

to exercise the onsite protection option, the landowner would

have to provide 1.25 times as much protected space offsite.

If the landowner could provide onsite protection but elected

not to, he would have to provide twice as much protected

space offsite. Thus, an owner of a five acre site could be

required to purchase as much as 3.6 acres offsite for every 10

* Proposed as Rule 9J-2.0258 of the Florida Administrative Code.

* Proposed as Rule 39-27.013 of the Florida Administrative Code.

* There is a presumption that five maintained gopher tortoise burrows

exist on each acre. The burden is on the owner to rebut that presumption

by conducting a survey of his property

burrows and set it aside for gopher tortoise burrows. Howev-

er, in an obvious attempt to avoid compensating the owners,

the regulation limits the percentage of the property which can

be required for tortoise protection: 30% or 50% depending

upon the location of the property within the State.

Even if such rules are not finally adopted, they often

serve as guides for local comprehensive plans and are

implemented, de facto. Onsite preservation and buffers can

render large parcels of land virtually useless. The cost of

offsite preservation can easily strip potential land use of any

profit.

SUMMARY OF ARGUMENT

The decision in Lucas is erroneous and in conflict

with prior opinions of the Court. The Nemours Foundation

urges the Court to indicate in its decision that the discrete,

affected segment of a parcel of property or property right

should be the focus of a takings analysis.

ARGUMENT

A. There Was An Unconstitutional Taking Of

The Lucas' Property.

The Nemours Foundation urges the court to reverse

the decision of the Supreme Court of South Carolina on the

ground that the South Carolina Beachfront Management Act

and its implementation resulted in a taking without just

compensation, in violation of the Fifth and Fourteenth

amendments. That court's misreading of the opinion in

Keystone v. DeBenedictus, 480 U.S. 470 (1987), cannot be

permitted to stand if the Takings Clause is to continue to

have any vitality. While The Nemours Foundation disagrees

with the conclusion reach by the majority in Keystone, it is

suggested that the tortured interpretation adopted in Lucas

below was never intended by the Court.

The majority opinion in Lucas adopts a simplistic or

"straightforward" approach. Because Lucas did not attack the

Beachfront Management Act, the court concluded that it

could not engage in the careful analysis of the statute required

by the previous decisions of this Court. It thus failed to

distinguish between prevention of a nuisance and advancing

a legitimate state interest. Nemours submits that the analysis

of the dissent in Lucas is correct in concluding that the

building of a residence does not constitute a nuisance.

Further, even had such activity involved a nuisance, the Lucas

court was required to determine whether the owner was

denied economically viable use of his land. Had the court

carefully considered either of these questions, it would have

been compelled to affirm the condemnation award to Lucas.

B. The Takings Analysis Should Be Limited To

The Property Actually Affected.

In addition to supporting Mr. Lucas’ effort to obtain a

reversal of the South Carolina Supreme Court decision, The

Nemours Foundation entreats the court to weigh carefully the

impact of its ruling on factual patterns beyond the issue as

framed. Specifically, the facts in this case are confined to

total economic loss of an entire parcel of land. The circum-

stances of The Nemours Foundation, as outlined above,

illustrate the sheer impossibility in many cases of ever

demonstrating total loss of an entire parcel of land. The

growing body of land use regulation in Florida has resulted

in an almost imperceptible regulatory taking through inverse

condemnation of much of the property upon which the

Foundation's income depends. If the Court leaves the impres-

sion that lower courts may reject the notion of a taking where

less, even substantially less, than the total value of an entire

parcel of property (or landholdings in an area) is lost, The

Nemours Foundation and its beneficiaries will be deprived of

a remedy for each such taking.

The Nemours Foundation’s concern is raised by com-

ments of the Court in several recent cases, although the

holdings arguably do not rest on those comments. For

example, in Penn Cent. Transp. Co. v. City of New York, 438

U.S. 104, 130 (1978), the Court stated

"Taking" jurisprudence does not divide a

single parcel into discrete segments and at-

tempt to determine whether rights in a particu-

lar segment have been entirely abrogated. In

deciding whether a particular governmental

action has effected a taking, this Court focuses

rather both on the character of the action and

on the nature and extent of the interference

with rights in the parcel as a whole--here, the

city tax block designated as the "landmark

site.”

Id. at 130-131. However, this position is neither substantiated

by reference to earlier decisions,° nor is it consistent with the

Court's analysis in that case. The Court in that instance was

most explicit in comparing the lost air rights (the discrete,

affected segment) to the value of transferable development

rights.

The majority in Keystone was confronted with a facial

challenge to a Pennsylvania statute’ and refused to find

constitutional infirmity on the basis of the record. Neverthe-

less, it took great pains to explain that less than 2% of the

coal reserves of the owners would be affected by the Pennsyl-

vania law.* An even greater conflict with the Penn Central

position is adopted by its author in the dissent in Loretto v.

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

In the latter case, the dissenters complain that what is "taken"

amounts to a fraction of a cubic foot. Thus, discrete seg-

ments of the property at issue are considered by the Court,

but often, seemingly, for the purpose of justifying its conclu-

sion.

° This untempered language appears for the first time in Penn Central,

and despite its lack of support in prior cases, it is now cited and relied

upon regularly by lower courts. See McNulty v. Town of Indalantic, 727

F. Supp. 604 (M.D. Fla 1989); Deltona, Inc. v. U.S. 657 F.2d 1184, 228

CuCl. 476 (Ct.Cl. 1981).

? The Bituminous Mine Subsidence and Land Conservation Act, Pa.

Stat. Ann. tit. 52, § 1406.1-1406.21 (Purdon Supp. 1991).

* The majority cites Michelman, Property, Utility, and Fairness:

Comments on the Ethical Foundations of “Just Compensation” Law, 80

Harv. L. Rev. 1165 (1967), when comparing the coal lost by petitioners

with their total reserves. However, it is doubtful that the Michelman

article supports the Court's conclusion.

The Foundation is encouraged by the Keystone minori-

ty's acknowledgment that despite the relative size of the lost

coal, it comprised 27 million tons for which the owners

should have been compensated. While the minority's ap-

proach has also been followed by lower courts, there is

obviousiy great confusion in this area. Two cases are most

compelling.

In Loveladies Harbor, Inc. v. United States, 15 Cl. Ct.

381 (1988), the court held that the taking analysis should be

applied to a 12.5 acre wetland portion of an original tract of

250 acres of which 51 acres had not been developed. The

court refused to expand the definition of the affected property

to either the full 250 acre parcel as originally purchased or to

the remaining undeveloped 51 acres. Thus, the court ruled

that the degree of impact and the type of governmental action

questions were to be answered solely with respect to the

wetlands portion on which development was denied.

In contrast, three years later the same court adopted a

contrary position without any attempt to explain the inconsis-

tency. Ciampitti v. United States, 22 Cl. Ct. 310 (1991).

Relying on the above-quoted language in Penn Central, the

court elected to focus on the "parcel as a whole." Ciampitti,

22 Cl. Ct. at 318. The reasoning of the court is enlightening,

however, because it demonstrates the confusion between

identifying the property and determining the degree of loss

suffered by the owner. While it was admittedly attempting to

define the affected property, the court wandered into the

“bundle of rights" analysis which should only be performed

after the property has been identified. /d.

The similarity between the facts in Loveladies Harbor

and Ciampitti and the inexplicable and unexplained’ contra-

diction in their analyses’? can perhaps be rationalized by

reference to the second ground for the Ciampitti result. The

court was clearly convinced that the property owner, in the

aggregate, had succeeded rather well in achieving reasonable

investment expectations. It is suggested, however, that such

reasoning does violence to the concept of uncompensated

taking and substitutes the judiciary's opinion for that of the

private investor.

The Nemours Foundation suggests that while not

directly at issue here, the Court should not overlook this

important aspect of a most complicated subject - the defini-

tion of the property at which the governmental action is

directed. The Foundation further proposes that the Court

obviate the possibility that the lower courts in future taking

disputes might focus on property which is not affected but in

some way related to that which has been affected. Stated

otherwise, and contrary to the language from Penn Central

quoted above, the Foundation urges the court to indicate that

affected, discrete segments of a property or a property right

be the focus of inquiry and that the taking rubric be applied

to those specific segments.

The Nemours Foundation does not contend here that

less than a total loss of value is compensable. That is an

issue which must be addressed on a case by case basis and

* In Ciampitti, the court makes no reference to Loveladies.

'° The court in Ciampitti acknowledges that the affected parcel and

another which were combined as the focus of the taking analysis were not

even contiguous. /d. at 320.

the Florida courts have adopted a responsible approach

toward that aspect of the problem. See Joint Ventures, Inc.

v. Dept. of Transportation, 563 So.2d 622 (Fla. 1990). The

Nemours Foundation suggests, however, that the analysis of

the degree of loss be postponed until the affected property or

property right has been isolated. At that point, a court can

consider the degree of loss and the justification therefor. The

regulatory framework in Florida'' lends itself to gradual

imposition of a wide variety of use restrictions which have

differing impacts upon property and property rights. The

constitutionality of the statutes and the regulations issued

thereunder will be tested over time. It is likely that these

Challenges will be confined to particular takings. If the courts

are permitted to apply the takings tests to entire parcels of

property rather than the affected segment, iarge landholders,

such as those from which The Nemours Foundation derives

its income, will regularly lose these challenges.

An example of a small taking is found in the seventy-

five foot buffer zones required in coastal, wetland, and

waterfront areas. One mile of such buffer totals more than

nine acres. This amounts to an almost immeasurable portion

of a 200,000 acre tract, but constitutes extremely valuable

property. As noted above, over 185 miles of such buffer

zones could render numerous segments of property valueless

over a period of years.

It is arguable that if challenges are viewed in the

context of total land holdings, large landholders might never

be compensated where the taking is in small increments

dependent upon the whims of wildlife. As exemplified by

'' This would include the State as well as Federal land use and

wildlife protection statutes and regulations.

proposed Rule 39-27.013 of the Florida Administrative Code,

discussed supra, the State regulators already anticipate

juxtaposing the affected segment (30% or 50% maximum)

against the entire parcel, arguing that all economic viability

is not lost. Thus, it is critical that landholder be able to chal-

lenge the taking on the basis of the segment actually affected.

CONCLUSION

While previously perhaps not a major consideration in

the overall issue of governmental taking, the definition of the

affected property is of paramount importance to The Nemours

Foundation. Failure on the part of courts to limit their

determinations to that segment of the property actually

impacted by the governmental action will severely jeopardize

the right to just compensation for those lands owned by those

entities supporting The Nemours Foundation and its beneficia-

ries.

Respectfully submitted,