Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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No. 91-453 [eo re

IN THE SUPREME COURT OF THE UNITED STATES

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 THE MEMBERS OF THE NATIONAL

GROWTH MANAGEMENT LEADERSHIP PROJECT

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

JOHN A. HUMBACH

Counsel of Record

c/o Pace University

School of Law

78 North Broadway

White Plains, NY 10603

(914) 422-4239

January 28, 1992

QUESTION PRESENTED FOR REVIEW

Does the Federal Constitution deny State legislatures the

power to prevent public harm through the use of building

restrictions that incidentally deprive some land of current

market value?

= TR er .

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........ I

pn ee Vv

PNtmmesie Or AMICI CURIAE.............. l

eenWEe GP BUMPERS 0. wc ce te ee 2

eh) 3

ETE’ 2a ds ces escce sce eseces +

The legislative power to restrict property uses

extends, potentially, to all uses that have

harmful impacts on other individuals or the

public generally .......... ae ek «es 4

1. The "Nuisance Exception" and Common

ek 5 5 5 6 68 ee ee es 5

2. Common Law Nuisances, the Police Power

I ec tt et tt tee 7

3. States May Redefine "Rights to Harm Others" 11

A public purpose to prevent harmful uses of

property can justify legislative measures that

remove all current market value ......... 13

1. Takings in Toto Justified by a Purpose to

Prevemt Detrimental Use .............. 14

2. Takings Merely of the Detrimental Use ... 15

3. “All Value” is Not “All Use” ......... 17

Ill. The determination of whether, on balance, the

harmful impacts from a property use justify

forbidding the use is a decision that should be

left to the legislature ...........-26.- 21

1. Traditional Scope of Judicial Supervision .. 22

2. "Economic Impact" and the Revision of

Legislative Judgments ...........-+--- 23

CRUE cece ek ee eee benenenns 29

' ~~ ee:

TABLE OF AUTHORITIES

Cases

Agins v. Tiburon, 447 US 255 (1980) .... 6, 18, 22-23

Andrus v. Allard, 444 US 51 (1979) ......... 6, 18

Belle Terre v. Boraas, 416 US 1 (1974) ........ 6, 8

Bove v. Donner-Hanna Coke Corp.,

236 App.Div. 37, 258 NYS 229 (1932) .... 12

Bowditch v. Boston, 101 US 16 (1879) ......... 13

Bowen v. Gilliard, 483 US 587 (1987) ......... 27

Bowers v. Hardwick, 478 US 186 (1986) ........ 29

Calero-Toledo v. Pearson Yacht Leasing Co.,

re 14-15, 19

Cleburne v. Cleburne Living Center,

oe eee 28

Columbia v. Omni Outdoor Advertising,

Teg BEG ae BR EUPED «kc ake e 25

Commonwealth v. South Covington & Cincinnati Street

Ry, 181 Ky. 459, 205 SW 581 (1918) ...... 8

Connelly v. Pension Benefit Guar. Corp.,

og a ee 14, 23

Copart Industries v. Consolidated Edison, 41 NY2d 564,

362 NE2d 968, 394 NYS2d 169 (1977) . 8, 10-11

Curtin v. Benson, 222 US 78 (1911) ............ 7

Day-Bright Lighting v. Missouri,

oo eee 27

Demorest v. City Bank Farmers Trust Co.,

og er 14

Euclid v. Ambler Realty Co.,

BPE Shc ccawbeeeees 6, 10, 17

First English Evangelical Lutheran Church v.

Los Angeles, 482 US 304 (1987) ........ 19

Florida Rock Indus. v. United States, 21 Cl.Ct.

i. SPeeerre rT errr Tee re 5, 17, 20

Gibson v. United States, 166 US 269 (1897) ...... 26

Goldblatt v. Hempstead, 369 US 590 (1962) .... 6, 18

Goldsmith-Grant Co. v. United States,

a ee ee 15

Hadacheck v. Sebastian, 239 US 394 (1915) .... 10, 17

Hatch v. W.S. Hatch Co., 3 Utah2d 295,

ES <5 GS & 6-6 8 60-6566 06 12

Hawaii Housing v. Midkiff, 467 US 229 (1984) .... 23

Hudson Water Co. v. McCarter,

209 US 349 (1908) ........... 6, 8, 19, 26

Johnson v. Whitten, 384 A2d 698 (Me. 1978) ..... 12

Kaiser Aetna v. United States, 444 US 164 (1979) .. 23

Keystone Bituminous Coal Assn. v. DeBenedictis,

480 US 470 (1987) .. 4-8, 11, 18, 19, 22-23, 27

Lawton v. Steele, 152 US 133 (1894) . 15, 22, 24-25, 29

Lochner v. New York, 198 US 45 (1905) ....... 27

Loretto v. Teleprompter Manhattan CATV Corp.,

ee PE 65 6% 60 RRS eee eee 18

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

381 (1988) and 21 Cl.Ct. 153 (1990) . 13, 17, 20

Lucas v. South Carolina Coastal Council,

Ge ee a CU 6 chee ec eee en is oe

Miller v. Schoene, 276 US 272 (1928) .......... 6

Mugler v. Kansas,

123 US 623 (1887) ...... 6, 11, 21-22, 25, 27

Nollan v. California Coastal Comm.,

483 US 825 (1987) .......... 13, 18, 22, 28

North American Cold Storage Co. v. Chicago,

Se ee 13

Pennell v. San Jose, 485 US 1 (1988) .......... 27

Pennsylvania Coal Co. v. Mahon,

y 3) B oF +: 3-4, 17-18, 27-28

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

f§ 8. eee 8, 17-18, 23

Perley v. North Carolina, 249 US 510 (1919) ...... 6

Vil

Powell v. Pennsylvania, 127 US 678 (1888) .. 6, 25, 29

Reduction Co. v. Sanitary Works,

ee 15

Reinman v. Little Rock, 237 US 171 (1915) ...... 10

Renton v. Playtime Theatres, 475 US 41 (1986) ..... 6

Tenement House Dept v. Moeschen, 203 US 583

(1906), affirming without opinion 179 NY 325,

EO ee 16

Transportation Co. v. Chicago, 99 US 635 (1878) .. 26

Urbanizorda Versalles v. Rivera Rios,

701 F2d 993 (Ist Cir 1983) ............ 28

United States v. Caltex, 344 US 149 (1952) ...... 14

United States v. $8,850, 461 US 555 (1983) .... 14-15

United States v. Housley, 751 F.Supp 1446

Nas a as 4 hub k eh oes 25

United States v. Pacific Railroad, 120 US 227 (1887) 14

United States v. U.S. Coin & Currency,

ri aes Sein 6 6 & & 08% 14

Van Oster v, Kansas, 272 US 465 (1926) ...... 14-15

Webb's Fabulous Pharmacies v. Beckwith,

ee ge bee eee 28

Welch v. Swasey, 214 US 91 (1909) ............ 6

Whitney Benefits v. United States,

926 F2d 1169 (Fed.Cir. 1991) .......... 20

—>

Constitution and Statutes

19 Car.2, c. 3, III, in 8 Pickering's Statutes

PE caCe a eases bees ne wee 2 9

S.C.Code Ann. § 48-39-170 (1987) ............ 7

South Carolina Beachfront Management Act,

fee Met Me. G4. ww wee 2, 7, 16, passim

ro S| ee ee 13

Ps SUG Ot tek ewewense 5, passim

Vill

Miscellaneous

American Law Institute, Second Restatement of

, t Gerretse Terror 8, 11, 21

Blackstone, Commentaries (1769) .............. 9

Bracton, De Legibus et Consuetudinibus Regni Angliae

DC CE Eee psseceovececcccoes 8

Hawkins, Pleas of the Crown (1724) ............ 9

Lewin, Boomer and the American Law of

Nuisance: Past Present and Future,

54 Albany L.Rev. 189 (1990) .......... 10

Locke, Two Treatises of

Government (Everyman ed. 1991) ......... )

Prosser & Keeton, Torts (Sth ed. 1984) ....... 8, 10

Prosser, Private Actions for Public Nuisance,

56 Virginia L. Rev. 997 (1966) ......... 11

Reznick, Land Use Regulation and the Concept

of Takings in 19th Century America,

40 U.Chi.L.Rev. 854 (1973) ........... 26

Spencer, Public Nuisance--A Critical Examination,

48 Cambridge L.J. 55 (1989) ............ 9

Treanor, The Origins and Original Significance

of the Just Compensation Clause of the Fifth

Amendment, 94 Yale L.J. 694 (1985) ..... 26

Zinn and Copeland, Wetland-Issues in

the 102d Congress, Congressional Research

Service Issue Brief 91058 (9/12/91) ....... 20

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-453

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 THE MEMBERS OF THE NATIONAL

GROWTH MANAGEMENT LEADERSHIP PROJECT'

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE

The National Growth Management Leadership Project

(NGMLP) is an association of state and regional conservation

and planning organizations! to encourage and promote

comprehensive land use planning as a policy tool to address

! Greenbelt Alliance, Colorado Environmental Coalition, Hawaii's

Thousand Friends, Natural Resources Council of Maine, Chesapeake Bay

Foundation, New Jersey Future, 1000 Friends of Oregon, Pennsylvania

Environmental Council, Save The Bay, South Carolina Coastal

Conservation League, Vermont Natural Resources Council, and

Washington Environmental Council join in this brief.

resource conservation, housing, transportation and other key

public concerns. Its focus is on both comprehensive planning

for urban areas as well as rural growth management issues

affecting such resource lands as wetlands, shorelands,

agricultural and forest lands and wildlife habitat.

A key question in this case is the extent to which the

Takings Clause authorizes courts to rethink State legislatures’

determinations to enact land use laws as measures to prevent

serious public harms. Any reallocation of ultimate land-use

authority from legislatures to the judiciary on the rationale of

"regulatory takings review" would diminish legislatures’

abilities to apply comprehensive planning techniques as a

policy tool. The participants in the NGMLP are concerned

that the resolution of the present case not, in its potentially

broader sweep, jeopardize traditional and innovative

comprehensive land-use planning techniques -- within the

limits set down by this Court's "takings" decisions

throughout this century.

This brief is filed on written consent, filed herewith,

of all parties.

STATEMENT OF THE CASE

South Carolina's Beachfront Management Act (S.C.

Code Ann. §§ 48-39-10 et seq.) prohibits Mr. Lucas from

erecting any substantial structure on his two beachfront lots,

essentially eliminating the land's current market value.

Notwithstanding this impact, however, South Carolina's

Supreme Court upheld the building prohibition, finding it to

be within the States' longstanding legislative authority to

forbid conduct that causes serious public harm. Lucas v.

South Carolina Coastal Council, 404 SE2d 895, 899 (1991).

SUMMARY OF ARGUMENT

A State has unquestioned authority to prohibit, with-

Out compensation, property uses that injure others. The

States' power to ban property uses deemed deleterious are

upheld within a very "broad range."

This Court's decisions leave no doubt that public wel-

fare can justify even a total destruction of property rights

without compensation. It is well settled, for example, that the

Takings Clause allows innocent owners’ property to be

forfeited in toto as a “defense” against detrimental use.

Certainly, States can also apply the more limited means of

merely forbidding the deleterious uses themselves -- even

when doing so takes all current market value of some proper-

ties.

In any event, "all value” is not the same as “all use."

None of this Court's modern "regulatory taking" cases has

actually held a use restriction to be a "taking" solely because

it removed all current market value (as distinguished from all

use). Moreover, the States' land-use authority should not

depend on current market conditions.

Most importantly, judicial review of the "takings"

issue must not become a pretext for judicial reassessments of

purposes and means selected by the States’ legislatures. This

Court's decisions support no such rethinking in the economic

sphere. South Carolina's legislature concluded that the harm-

ful effects of beachfront development justified a ban on that

use. The law's incidental economic impact is not a cue for

judicial intercession, nor is it prima facie proof that the

legislature's weighing went awry.

The concept of socially detrimental land use fluxes

and changes with changing social norms, knowledge and

context. To preserve the legislative function to the legis-

latures, regulatory taking review should adhere to Justice

Holmes' approach in Pennsylvania Coal v. Mahon, the case

that established the regulatory taking concept: So long as the

purposes and means are valid, land use laws should be

deemed "takings" only if they go so far that they are (as in

Mahon) the generic equivalent of physical requisitions for

public use.

ARGUMENT

South Carolina's beachfront building restriction essen-

tially eliminates the current market value of Mr. Lucas’ land.

That impact does not, however, mean this Court should

overturn the State legislature's determination to enact the

restriction as a measure to prevent public harm.

POINT I.

The legislative power to restrict property uses extends,

potentially, to all uses that have harmful impacts on other

individuals or the public generally.

Restricting the uses that owners can make of their

property is one of the primary ways that government carries

Out its essential purpose of preserving the general public

welfare. Keystone Bituminous Coal Assn. v. DeBenedictis,

480 US 470, 491 (1987). In carrying out its governmental

responsibility, a State has:

"unquestioned authority to prevent a property owner from

using his property to injure others without having to

compensate-the value of the forbidden use." Keystone, 480

US at 511 (Rehnquist, C.J., dissenting).

As Justice Stevens explained, writing for the majority,

"since no individual has a right to use his property so as

to create a nuisance or otherwise harm others, the state

has not ‘taken’ anything when it asserts its power to

enjoin the nuisance-like activity." Keystone, 480 US at

491, n. 20.

A key point of difference between the Keystone

majority and dissent is how broad (or narrow) is this harm-

prevention "exception" to the Fifth Amendment's compen-

sation guarantee. US Const. Amend. V. Referring to it as the

"nuisance exception,” the dissenting Justices observed that it

is not "coterminous with the police power itself," and the

majority did not disagree. See Keystone, 480 US 491, n. 20,

and 512 (Rehnquist, C.J., dissenting). But given that the

"exception" is not coterminous with the State's "multifaceted

health, welfare, and safety" powers, id. at 513, how broad

is it?

1. The "Nuisance Exception” and Common Law Nuisances--

The very name "nuisance exception" suggests an exception

to the Takings Clause guarantee that applies only to uses that

are "nuisances" at common law, or something very close.

See Florida Rock Indus. v. United States, 21 Cl.Ct. 161,

166-68 (1990) ("considered a nuisance"). See also Lucas, at

906 (1991) (Harwell, J., dissenting). Logically, to be sure,

the common law of nuisance almost certainly establishes the

minimum reach of the exception, for nothing is "taken" when

legislation merely forbids the already forbidden. If, however,

the governmental power to restrict land use were solely

confined to uses considered nuisances anyway, land use legis-

lation would be vastly more circumscribed than we know it

today -- limited essentially to codifying the common law. The

so-called "nuisance exception" is surely broader.

Thus, although the common law of nuisance has long

been held to provide "a fairly helpful clew" in evaluating the

validity of land use regulations, it is to be consulted "not for

the purpose of controlling, but for the helpful aid of its

analogies. . . ." Euclid v. Ambler Realty Co., 272 US 365,

387 (1926). The majority opinion in Keystone plainly

acknowledged the exception's greater breadth when it used

phrases such as “akin to a public nuisance," Keystone, 480

US at 488, "similar to public nuisances," id. at 492, and

"nuisance-like," id. at 491, n. 20, to describe the kinds of

land uses that a State can prohibit without paying compen-

sation. It noted, moreover, that this Court had not in the past

felt required to "weigh with nicety” the question of whether

there was a nuisance according to the common law. /d. at

490, quoting Miller v. Schoene, 276 US 272, 280 (1928)

(upheld uncompensated destruction of cedar trees to protect

nearby apple trees owned by others). And it stated that "no

individual has a right to use his property so as to create a

nuisance or otherwise harm others." Keystone, 480 US at

491, n. 20 (emphasis added).

Clearly, in Keystone, as in so many previous cases,

this Court did not regard the legislative power to restrict

harmful uses to be limited to uses considered "noxious" or

nuisances at common law. See e.g., Renton v. Playtime

Theatres, 475 US 41, 54 (1986) (banning adult theaters on

certain sites as "the essence of zoning"); Andrus v. Allard,

444 US 51 (1979) (trading in eagle feathers); Agins v.

Tiburon, 447 US 255 (1980) (lots smaller than 1-5 acres);

Belle Terre v. Boraas, 416 US 1 (1974) (six students in a

house); Goldblatt v. Hempstead, 369 US 590 (1962) (mining

gravel); Perley v. North Carolina, 249 US 510 (1919) (tim-

ber scraps left on ground); Welch v. Swasey, 214 US 91

(1909) (tall buildings); Hudson Water Co. v. McCarter, 209

US 349 (1908) (selling water interstate); Powell v. Pennsyl-

vania, 127 US 678 (1888) (margarine); and Mugler v. Kan-

sas, 123 US 623 (1887) (alcoholic beverages). On the

contrary, so far as can be discerned from Keystone and these

other precedents, the legislative power to restrict the use of

property extends, potentially, to all uses that the legislature

deems likely to harm or injure other persons or the

community as a whole.

Although the Keystone dissent aiaiadie’ govern-

ment's "unquestioned authority" to forbid property uses that

"injure others," Keystone, 480 US at 511, the dissent

seemingly ascribed a lesser range to this "exception."

Describing it as a "narrow exception allowing the govern-

ment to prevent 'a misuse or illegal use,'" id. at 512, the

dissent quoted dicta from an "arguendo" discussion in Curtin

v. Benson, 222 US 78, 86 (1911) (HELD: Secretary of

Interior was not empowered to limit uses of private

inholdings in Yosemite Park). Besides being dicta, however,

the Curtin "misuse or illegal use" test is also circular: All

uses banned by legislation are by definition illegal and,

hence, misuses of property -- provided the legislation is

valid, which is of course precisely the point at issue. To

accept the Curtin dictum on its face would require affirmance

of the decision below: Building houses on beaches in viola-

tion of South Carolina's Beachfront Management Act would

be an illegal use and, hence, a misuse of land. $.C.Code

Ann. § 48-39-170.

In sum, neither the Keystone majority nor the Court's

other precedents (nor even, probably, the Keystone dissent)

would confine legislatures’ power to restrict land uses solely

to nuisances at common law. Because nuisance law is so

often invoked as a source of guidance, however, it becomes

critical to ask: What exactly is the relation between the

common-law nuisance, the police power and property rights?

2. Common Law Nuisances, the Police Power and Property

Rights-- "All rights tend to declare themselves absolute to

their logical extreme. Yet all in fact are limited by the

neighborhood of principles of policy which are other than

those on which the particular right is founded. ... The

limits set to property by other public interests present

themselves as a branch of what is called the police power of

the State." Hudson Water Co. v. McCarter, 209 US 349, 355

(1908) (Holmes, J.)

Some "nuisance regulations" exempted from the Fifth

Amendment may have rested on “discrete and narrow

purposes," see Keystone, 480 US at 513 (Rehnquist, C.J.,

dissenting), but the same can scarcely be said of the whole

wide array of safety, health, aesthetic and even lifestyle

objectives that have been validly advanced under the police

power. E.g., Penn Central Transp. Co. v. New York City,

438 US 104 (1978) (aesthetics); Belle Terre v. Boraas, 416

US 1 (1974) (family lifestyle); and other cases cited in subd.

1 of this POINT I. The limits on property use under the

common law of nuisance can likewise hardly be said to have

“discrete and narrow" purposes. On the contrary, "[t]here is

perhaps no more impenetrable jungle in the entire law than

that which surrounds the word ‘nuisance.'" Prosser &

Keeton, TORTS 616 (Sth ed. 1984).

Though now mostly encompassed within specific

statutory offenses, the historic range of public nuisance, as

it developed over the centuries, grew to be essentially co-

extensive with the police power itself. See, e.g., Copart

Industries v. Consolidated Edison, 41 NY2d 564, 568, 362

NE2d 968, 971 (1977) (acts that "endanger or injure the pro-

perty, health, safety or comfort of a considerable number of

persons"); Commonwealth v. South Covington & Cincinnati

Street Ry, 181 Ky. 459, 463, 205 SW 581, 583 (1918) (act

or omission that "injuriously affects the safety, health or

morals of the public"); SECOND RESTATEMENT OF TORTS,

§ 821B (2)(a) (public health, safety, peace, comfort or

convenience). Already in 1256, Bracton was writing of

"nocumentum contra communem utilitatem" (nuisance against

the common welfare "which must always and in every case

be preferred to the private"). 3 Bracton, DE LEGIBUS ET

CONSUETUDINIBUS REGNI ANGLIAE 196 (Thorne ed. 1977).

At the time our Constitution's Framers were learning their

law, public nuisance was being defined as "either the doing

of a thing to the annoyance of the king's subjects, or the

neglecting to do a thing that the common good requires." 4

Blackstone, COMMENTARIES 167 (1769). Accord, | Hawkins,

PLEAS OF THE CROWN 197 (1724).*

Not only did the courts add new kinds of public

mischief to the public nuisance list as needs arose but, from

the 16th century onwards, but so did Parliament. See

generally, Spencer, Public Nuisance--A Critical Examination,

48 Cambridge L.J. 55 (1989). One of the first legislated

public nuisances was a land-use regulation forbidding

cottages to be built on rural lots of fewer than 4 acres

freehold. See 4 Blackstone, at 168. Violations of the London

building code of 1666 were another of the early legislated

public nuisances. 19 Car.2, c. 3, Ill, in 8 Pickering's

Statutes at Large (1763).

Following the War of Independence, State legislatures

replaced Parliament as the principal legislators in the public

nuisance field. On the validity of such laws, this Court said

that it was "clearly within the police powers of the State. . .

‘to declare that in particular circumstances and in particular

localities a [use affecting the "health and comfort of the

community"] shall be deemed a nuisance in fact and in law.'"

2 Even Locke, for whom “great and chief end” of government was

“the presc. ation of . . . property,” agreed that “political power [is] a

nght of making laws [with penalties] for the regulating and preserving of

property”. Locke, TWO TREATISES OF GOVERNMENT Bk II, §§ 124

& 3 (Everyman ed. 1991). “For it would be a direct contradiction,”

Locke noted, “for any one to enter into society with others for the

securing and regulating of property, and yet to suppose his land . - .

should be exempt from the jurisdiction of that government to which he

himself, and the property of the land, is a subject.” /d. at § 120. (All

emphasis added.)

Hadacheck v. Sebastian, 239 US 394, 411 (1915), quoting

Reinman » Little Rock, 237 US 171 (1915) (emphasis

added). Today legislatures usually make such public harms

illegal without the circumlocution of actually denominating

them as "public nuisances," but the principle is the same. No

doubt influenced by the principle nulla poena sine lege ("no

penalty without a statute"), essentially the entire "public

order-common good" domain of common law public auisance

has been now embodied in specific police-power legislation

-- subject to takings review.

The common law of private nuisance also affects and

shapes the outer contours of property rights to use land. Like

public nuisances, private nuisances also would hardly qualify

as a “narrow and discrete" category of noxious or

reprehensible conduct. See generally, Prosser & Keeton, at

619-33. To the contrary, "a nuisance may merely be a right

thing in the wrong place, -- like a pig in the parlor instead of

the barnyard." Euclid v. Ambler Realty Co., 272 US 365,

388 (1926). In addition to depending on location, classifying

conduct as a nuisance also depends crucially on whether "the

gravity of the harm caused outweighs the utility of the

conduct," Prosser & Keeton, at 630, or on an even more

complex weighing of various factors that are normal

concomitants of private nuisance tests. See generally, Lewin,

Boomer and the American Law of Nuisance: Past Present

and Future, 54 Albany L.Rev. 189, 212-14, 234-36 (1990).

Perhaps the only objective feature that all adjudicated

private nuisances truly have in common is that the

defendant's land use had effects that spilled over the property

line causing harm to the plaintiff. Prosser & Keeton, at 619

("The essence of a private nuisance is an interference") (em-

phasis added). Far from referring to a discrete class of

inappropriate conduct, "nuisance, as a general term,

describes the consequences of conduct, the inconveniences to

others, rather than the type of conduct involved." See Copart

Industries v. Consolidated Edison, 41 NY2d 564, 568, 362

NE2d 968, 971 (1977) (emphasis added); see also SECOND

RESTATEMENT OF TORTS, § 821A, Comment c ("as used in

the Restatement, ‘nuisance’ does not signify any particular

kind of conduct on the part of the defendant"). Reviewing

numerous examples Dean Prosser concluded that "nuisance,

in short, is not conduct, nor is it even a condition. It is the

invasion of an interest, a type of harm or damage... ."

Prosser, Private Actions for Public Nuisance, 52 Virginia L.

Rev. 997, 1004 (1966). The common law of nuisance is not,

in other words, so much a flat prohibition of harms as it is

a multi-factored balancing process to decide which harms to

prohibit.

3. States May Redefine "Rights to Harm Others"-- Since the

question first arose a century ago, the elemental principle has

been recognized that laws to prevent harm or injury are not

takings. Mugler v. Kansas, 123 US 623, 665 (1887) ("all

property in this country is held under the implied obligation

that the owner's use of it shall not be injurious to the

community"). The principle was invoked by both the

majority and dissenting opinions of Keystone, 480 US at 491,

n. 20 and 511 (see quotations from both in first paragraph of

this POINT I, supra). Yet, despite the two opinions’ apparent

agreement on the general principle, an important difference

remained between them, a difference that sharply raises the

question: Do a// harms or injuries that a land use inflicts on

others count as "harm" or "injury" for purposes of the prin-

ciple? Or, are there categories of harm or injury that a State

cannot constitutionally prohibit without paying compensation?

Legal rights to use property in ways that incidentally

harm innocent others are well known in our law -- they are

the essence of damnum sine injuria. Even quite substantial

harms can be lawfully visited on others (for example,

flooding neighbors by diverting surface water), or on the

community (demolishing an inspirational landmark; or

smokestack emissions that cause acid rain), all depending on

the policy judgments and choices reflected in the applicable

law. See, e.g., Johnson v. Whitten, 384 A2d 698 (Me. 1978)

(surface water); Hatch v. W.S. Hatch Co., 3 Utah2d 295,

283 P2d 217 (1955) (noise, fumes, bright lights); Bove v.

Donner-Hanna Coke Corp. , 236 App.Div. 37, 258 NYS 229

(1932) (heavily polluting coke plant across from residence).

More generally, the universe of such "rights to harm

others" in connection with land use comprises the whole

range of damnum sine injuria lying between a baseline of

"zero" impact and the points at which, by common law or

Statute, a use's external impacts become actionable or

indictable. Such a range of rights to harm is, as a practical

matter, unavoidable. Valuable uses of land often have

negative impacts on neighboring valuable uses or come into

conflict with other private or societal goals. A legal rule that

prohibited all such detrimental spill-overs would be not only

highly impractical but, probably, an economic disaster.

Therefore, when persons complain about negative impacts

from others' land uses, there is often no sensible policy

choice except to decide that, on balance, the public interest

is best advanced by allowing the uses (¢.g., an important

industry) despite their associated harmful effects on neighbors

or the community at large.

Although property ownership must, as a practical

matter, involve various incidental rights to effect spill-over

harms, it surely does not follow that any such rights to harm

should ever be constitutionally inviolable. On the contrary,

the legislature needs be free to extend or withdraw such

rights to harm others and, in effect, to reset the thresholds of

"nuisance" as new conditions from time to time arise. To

hold_otherwise, that some harm-producing conduct is beyond

State power to ban, except with compensation, is to deny

State legislatures vital authority to respond in law to change.

It is the very essence of the legislative function to

respond to the changing balance of societal needs with

measures to protect the public welfare, even though there

may incidentally be secondary effects on private wealth. See

discussion in POINT III, infra. There is no supervening

federal law of damnum sine injuria to backstop private

owners' rights to engage in harm-producing uses of land. A

legislature's decision to enlarge the list of forbidden detri-

mental conduct should be dispositive.°

POINT II.

A public purpose to prevent harmful uses of property can

justify legislative measures that remove all current market

value.

This Court's decisions leave no doubt that public wel-

fare concerns can justify even a total destruction of property

rights without compensation. Measures to protect public

health are one example. E.g., North American Cold Storage

Cu. v. Chicago, 211 US 306 (1908) (confiscation of spoiled

food); see, e.g., 21 USCA § 673 (Supp. 1991) (authorizing

seizure of adulterated meat, etc.). Public "emergency" situa-

tions are another. Bowditch v. Boston, 101 US 16, 18 (1879)

3 Note that it does not necessarily follow as a corollary that, when

the legislative purpose is to benefit the public, compensation is required.

Such a so-called harm/benefit distinction is often described as illusory

inasmuch as a given legislative act can usually be characterized equally

well as both preventing harm and securing benefit -- there being no

“benchmark standard of objectivity." Loveladies Harbor vy. United States,

1S Cl.Ct. 381, 389-90 (1988). By contrast, physical invasion or

permanent physical occupation is a kind of regulatory effect that is very

distinct from a mere use restriction -- and one that virtually always

requires compensation. Nollan v. California Coastal Comm., 483 US

825, 831-32 (1987).

(blowing up a house to stop spread of fire). See also United

States v. Caltex, 344 US 149, 154 (1952) (destroying

terminal facilities in path of hostile forces), quoting United

States v. Pacific Railroad, 120 US 227, 234 (1887) ("The

safety of the state in such cases overrides all consideration of

private loss"). Modifications of the medieval estate-system

structure to meet twentieth century needs are still another.

Demorest v. City Bank Farmers Trust Co., 321 US 36, 48

(1944) ("The whole cluster of vexatious [ancient property

intricacies] . . . is one whose history admonishes against

unnecessary rigidity"). See also Connelly v. Pension Benefit

Guar. Corp., 475 US 211, 225 (1986) (upheld Act that

“completely deprives").

1. Takings in Toto Justified by a Purpose to Prevent

Detrimental Use-- A most important class of total takings to

prevent detrimental use of property is the statutory forfeiture

of land or chattels used in "undesirable" ways, as

legislatively determined. Van Oster v. Kansas, 272 US 465,

467 (1926) (transporting liquor). "[T]Jhis Court in the past

has recognized the difficulty of reconciling the broad scope

of traditional forfeiture doctrine with the requirements of the

Fifth Amendment." United States v. U.S. Coin & Currency,

401 US 715, 721 (1971). The fact nonetheless remains that

"legitimate governmental interests," or "legitimate purposes,"

Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663,

688 and 690 (1974), can justify in toto takings despite

extreme impingement on private property rights. To prevent

use of narcotic drugs, for example, forfeiture can apply not

just the to drugs themselves but, even more significantly, to

the innocent owner's vessel in which the drugs were found.

Id. See also United States v. $8,850, 461 US 555, 562 n. 12

(1983) ("important governmental purposes").

The government should not, of course, have to pay

compensation when it confiscates such obviously "noxious"

contraband as narcotics, switchblade knives or homemade

bombs. But legislative power to create new classes of contra-

band in order to prevent detrimental use is far more inclu-

sive, extending to uses that are not especially "evil" at all

e.g., drinking alcoholic beverages, fishing with nets, or

removing trash from San Francisco. See, ¢.g., Van Oster v,

Kansas, 272 US 465 (1926); Lawton v. Steele, 152 US 133

(1894); cf. Reduction Co. v. Sanitary Works, 199 US 306,

311, 317-18 & 321 (1905). In short, forfeiture can be applied

not only to prevent property uses that are malum in se but to

malum prohibitum as well. Calero-Toledo, 416 US at 684;

see, e.g., United States v. $8,850, 461 US 555 (1983)

(entering U.S. with $8,850 and not notifying government);

Goldsmith-Grant Co. v. United States, 254 US 505 (1920)

(use of automobile in aid of tax evasion).

The reason that "inquiry into the guilt or innocence of

the owner [can] be dispensed with" is that "state lawmakers,

in the exercise of their police power, [are] free to determine

that certain uses of property [are] undesirable" and then

adopt confiscation as a "secondary defense against a

forbidden use." Calero-Toledo, 416 US at 686. Accord,

Goldsmith-Grant, 254 US at 513 ("It is the illegal use that is

the material consideration . . . the guilt or innocence of its

owner being accidental"). However one looks at it, statutory

forfeiture is a clear modern example of the public interest

justifying in toto takings of innocent owners' property

irrespective of fault, breach of duty, wrongdoing or illegality

on the owner's part.

2. Takings Merely of the Detrimental Use-- Although taking

entire ownership interests can be quite effective as a

"defense" against "undesirable" uses of property, legislatures

normally choose less drastic measures. Relevant public

welfare concerns usually can be served by taking merely the

undesirable use itself, not ownership as a whole. Ordinary

land-use regulations and housing codes are obvious examples

of these less drastic measures.

Even when legislatures take only the uses deemed

socially detrimental, however, the result may still eliminate

the current market value of some properties. An unsanitary

tenement house, for example, can be unfit for human habita-

tion under the local housing code and yet, due to high repair

or demolition costs, it might have no other "economically

viable use" either. See, e.g., Tenement House Dept v.

Moeschen, 203 US 583 (1906), affirming without opinion 179

NY 325, 72 NE 231 (1904) (tenement owner ordered to

replace outdoor privy with expensive indoor toilets). The

State surely does not have to "buy" such an unfit structure in

order to have it vacated -- a view sustained by this Court in

affirming the Moeschen case per curiam. Id. See generally,

J. Gilbert, Tenements and Takings, 18 Fordham Urban L.J.

437 (1991) (full background of Moeschen case).

The Beachfront Management Act has the same effect

on Mr. Lucas that New York's Tenement House Law had on

Mrs. Moeschen. In both cases, essentially all value was

removed when the legislature banned certain uses that it

determined to be socially deleterious. In both cases, too, the

prohibited uses could be regarded, at least in the abstract, as

respectable uses for their times (building on beachfronts or,

in 1906, operating a tenement house without plumbing). And

in both cases the bans are justified by the respective

legislatures’ determinations that new knowledge and,

perhaps, evolving social needs, values and progress had

made uses that were once acceptable too detrimental to allow

any longer.

Summing up to this point, the law is well settled that

the Takings Clause allows innocent owners’ property to be

taken in foto as a “defense” against uses that the legislature

determines to be socially detrimental. That being so, it would

be anomalous if States could not also employ the more

limited means of merely forbidding the particular deleterious

uses themselves -- even if, on occasion, those uses happen to

account for the entire current market value of some proper-

ties affected.

3. “All Value” is Not "All Use"-- This Court's decisions

"uniformly reject the proposition that diminution in property

value, standing alone, can establish a 'taking.'" Penn Central

Transp. Co. v. New York City, 438 US 104, 131 (1978).

Indeed, as has been for many decades explicit, regulations

can remove very large proportions of value and still not be

compensable takings. See Euclid v. Ambler Realty Co., 272

US 365 (1926) (75%); Hadacheck v. Sebastian, 239 US 394

(1915) (92.5%); both modernly cited with approval, e.g.,

Penn Central, 438 US at 125-26 and 131.

But what if the diminution of a property's current

value approaches totality? Regulations that go “too far" may

effect a taking. Pennsylvania Coal Co. v. Mahon, 260 US

393, 415 (1922). Does this mean that the incidental removal,

by regulation, of the last few percentage points of current

market value converts a valid exercise of the police power

into a “taking” that requires the State to pay the entire

market value?

No decision of this Court has, of course, ever given

talismanic significance to the last few percentage points of

current market value. Nonetheless, in recent years some have

seen a basis for according such disproportionate significance

to the last decrements of value in this Court's "economically

viable use” criterion of taking. Compare, e.g., Loveladies

Harbor v. United States, 21 Cl.Ct. 153, 160 (1990) (tidal

wetlands: 99% reduction invalid), and Florida Rock

Industries v. United States, 21 Cl.Ct. 161, 175-76 (1990)

(freshwater wetlands: 95% reduction invalid), with

Hadacheck v. Sebastian, 239 US 394, 405 (1915) (brickyard

ban: 92.5% reduction upheld).

Since 1980, this Court has repeatedly stated that a

land-use restriction effects a taking if it "denies an owner

economically viable use of his land." Agins v. Tiburon, 447

US 255, 260 (1980). See also, e.g., Keystone, 480 US at

495; Nollan v. California Coastal Comm., 483 US 825, 834

(1987). The 1980 Agins opinion was the first occurrence of

the "economically viable use” formulation as such.*

This Court had no occasion in Agins, nor since, to

actually hold a land-use restriction in violation of the

"economically viable use" criterion. The question is still to

that extent open whether the Takings Clause gives owners a

minimum, inviolable economic guarantee. Some things, how-

ever, are clear: First, the Takings Clause does not assure an

owner against reductions in value, or the most valuable use.

Andrus v. Allard, 444 US 51, 66 (1979); Goldblatt v.

Hempstead, 369 US 590, 592 (1962). Second, the Takings

Clause does not necessarily assure the owner a financial

profit. See, e.g., Loretto v. Teleprompter Manhattan CATV

Corp., 458 US 419, 436 (1982); Andrus, 444 US at 66 (“loss

of future profits . . . provides a slender reed upon which to

rest a takings claim").° Third, regulations that deny an

4 Just two years earlier, the counterpart prong of essentially the same

two-part test was more tentative: “or perhaps if [the restriction] has an

unduly harsh impact upon the owner's use of the property.” Penn

Central, 438 US at 127 (emphasis added).

5 It is true, to be sure, this Court said in Pennsylvania Coal Co. v.

Mahon, 260 US 393 (1922), that preventing a coal owner from mining

the coal at a profit is "very nearly the same” as destroying it. But under-

ground coal is an extremely atypical asset: Unless it is mined, it has no

use at all. /d. at 414 ("For practical purposes, the right to coal consists

in the right to mine it"). Extremely few kinds of property are so narrowly

constrained in their usefulness -- and, most certainly, oceanfront land 1s

not among them.

owner “all use" of his property (if not "all value") are highly

likely to be viewed as regulatory takings. See, e.g., Hudson

Water Co. v. McCarter, 209 US 349, 355 (1908) ("wholly

useless," per Holmes, J.); See also First English Evangelical

Lutheran Church v. Los Angeles, 482 US 304, 321 (1987)

(“all use"); Keystone, 480 US at 513 (“all use") (Rehnquist,

C.J., dissenting).

The Beachfront Management Act denies Mr. Lucas

almost all of his lots' economic value, but the Act by no

means denies all use. Removing literally "all use" would

truly be the generic equivalent of a physical taking, reducing

the ownership to an essentially theoretical status with no

operational consequence in the real, physical world. Property

"rights" are functionally gone once they cease to exist as

matters of legal or any other significance. The same cannot,

however, be said of regulations that merely remove current

market value. Property rights that lack current market value

not only can exist as matters of genuine significance but can

even be highly prized by their owners. When a harm-

prevention measure removes all value, that merely signifies

that current potential buyers are only interested in acquiring

the property for uses now regarded as too socially

detrimental to allow.

This Court's modern "regulatory taking" cases do not,

as noted earlier, contain any definite holding that land-use

restrictions necessarily effect a compensable taking when they

deprive some properties of current market value. (Indeed.

Calero-Toledo and its "forfeiture" lineage are to the opposite

_ effect, as discussed above.) There are, moreover, important

reasons that counsel against adopting any value-oriented

"takings" test that defines the scope of States' land-use

authority in terms of current market conditions.

Many millions of acres of this nation's important

natural resource lands (including the beaches and dunes of

the present case) may, in their present natural condition, have

little commercial value by the standards of present-day

markets. Thus, despite the potential cost to future genera-

tions, owners in our present generation often have an under-

standable temptation to displace important natural resource

values in order to secure profit in the short-term. See, e.g.,

Loveladies Harbor vy. United States, 21 Cl.Ct. 153 (1990)

(tidal wetlands), and Florida Rock Industries v. United

States, 21 Cl.Ct. 161 (1990) (freshwater wetlands). If the

discourse on the long-term future of America's natural

resources turns on nice distinctions about “all value" or

"virtually" all value in short-term markets, the future will be,

in the end, at the mercy of transient market forces.

What is at stake is our nation's ability to protect the

natural resource base on which its vitality, economic

viability, quality of life and natural beauty depend. During

the past year or so the United States has been held liable for

over $60 million to pay for "takings" that courts have held

to occur as a result of national efforts to retain the natural

character of a few hundred acres of alluvial valley floor and

wetlands. Whitney Benefits v. United States, 926 F2d 1169

(Fed.Cir. 1991) (alluvial valley); Loveladies Harbor v.

United States, 21 Cl.Ct. 153 (1990) (tidal wetlands), and

Florida Rock Industries v. United States, 21 Cl.Ct. 161

(1990) (freshwater wetlands). By contrast, this nation has

over 100 million acres of wetlands alone, less than one-half

of the original total, but still an extraordinary amount of land

if, to preserve it, the government would have to buy it all.

See Zinn and Copeland, WETLAND ISSUES IN THE 102D

CONGRESS, Congressional Research Service Issue Brief

91058 (9/12/91). Even if budget concerns were not an issue,

there are others: There must be a better way to insure against

shorted-sighted exploitation of posterity's patrimony than to

put it all back in government hands.

Our free-market economy and private allocation of

property have proved themselves unsurpassed as social tools

to achieve high living standards and a strong industrial base.

These tools are not, however, flawless: Even the best market

economy unavoidably suffers from “market failure," an

inability to account properly for so-called external costs --

including the negative spill-overs from various land uses, and

the tendency to discount excessively the rights of our descen-

dants. No nation can disable itself from the defense of its

resources, or leave them vulnerable to poorly planned

development or badly executed utilization that may be

prompted by short-term market conditions. Any rigid

“economically viable use" guarantee under the Taking Clause

would, however, do just that: It would make our elected

legislatures’ ability to restrain detrimental use of our

American landbase constitutionally dependent on current

market price.

POINT III.

The determination of whether, on balance, the harmful

impacts from a property use justify forbidding the use is a

decision that should be left to the legislature.

"Practically all human activities unless carried on in

a wilderness interfere to some extent with others or involve

some risk of interference," SECOND RESTATEMENT OF

TORTS, § 822, Comment g. A critical question of legal

policy is which particular interferences should be prohibited

and which ones, in the overall public interest, need to be

allowed. See POINT I, subd. 3. The critical constitutional

issue is which governmental forum ought to be deciding these

questions of legal policy.

The constitutional tradition is clear: “Power to

determine such questions; so as to bind all, must exist

somewhere; . . . Under our system that power is lodged with

the legislative branch of the government.” Mugler v. Kansas,

123 US 623, 660-61 (1887). And “in this particular a large

discretion is necessarily vested in the legislature to deter-

mine, not only what the interests of the public require, but

what measures are necessary for the protection of such inter-

ests." Lawton v. Steele, 152 US 133, 136 (1894). Still, a

legislature's own "determination as to what is a proper exer-

cise of its police powers is not final or conclusive, but is

subject to the supervision of the courts." Jd. at 137. It is the

proper scope of this judicial supervision as applied to alleged

"takings" that is the crux of the issue in this case.

1. Traditional Scope of Judicial Supervision-- The question

of whether a land-use regulation is a taking is much like the

legislative question of whether a particular harm-inducing

land use ought to be prohibited (or allowed): Both “neces-

sarily require[] a weighing of private and public interests."

Keystone, 480 US at 492, quoting Agins, 447 US at 261;

compare discussion in POINT I. The close interrelation of

these two questions presents the constant risk that judicial

review of the "takings" issue may turn imperceptibly into a

rethinking of the purposes and means selected by the elected

legislature. This Court's decisions do not, however, support

any such rethinking of legislative determinations.

Accordingly, though “the legitimacy of [legislative]

purpose is a question of federal" law, Keystone, 480 US at

512 (Rehnquist, C.J., dissenting), this Court's decisions

make clear that "a broad range of governmental purposes

and regulations satisfies these requirements.” Nollan v.

California Coastal Comm., 483 US 825, 834-35 (1987)

(emphasis added); see partial listing at POINT I, subd. 1,

supra. The constitutional review of "purpose" goes not to

whether the legislature's purpose was a wise choice, but

solely to whether that purpose falls within the "broad range"

of legitimacy. In this case, it appears not even controversial

that the State's enunciated purposes to prevent the detrimental

safety, economic and environmental effects of beachfront

development fall within the range. Lucas, 404 SE2d at 896-

88. See Agins, 447 US at 261.

Similarly, judicial "inquiry into legislative purpose is

not intended as a license to judge the effectiveness of legis-

lation," the constitutional question being only whether the

"Legislature rationally could have believed that the [Act]

would promote its objective." Keystone, 480 US at 511 n. 3

(Rehnquist, C.J., dissenting), quoting Hawaii Housing vy.

Midkiff, 467 US 229, 242 (1984). At any rate, South

Carolina could hardly have found any more direct means to

preserve the natural safety, economic and environmental

functions of its beaches and dunes than by banning artificial

modifications in the critical zones.

2. “Economic Impact" and the Revision of Legislative

Judgments-- Beyond assuring that legislative purposes fall

within the "broad range" and that the means selected are

rational, this Court has identified several other factors as

having “particular significance" for takings questions, viz.

"the economic impact of the regulation, its interference with

reasonable investment backed expectations, and the character

of the government action." Keystone, 480 US at 495, quoting

Kaiser Aetna v. United States, 444 US 164, 175 (1979).

The "character" and "reasonable investment-backed

expectation” factors both tend to weigh against finding a

taking in this case: The character of the regulation is in no

sense a physical invasion, which usually demarks a taking;

it is simply a restriction on use. Keystone, 480 US at 488 n.

18; Penn Central, 438 US at 124. As to the reasonableness

of expectations, "those who do business in the regulated field

cannot object if the legislative scheme is buttressed by subse-

quent amendments to achieve the legislative end." Connelly

v. Pension Benefit Guar. Corp., 475 US 211, 227 (1986).

Shoreline development has been regulated in South Carolina

since 1977, long before Mr. Lucas bought his lots.

Although South Carolina's beachfront setback rule has

an admittedly great "economic impact” on the current market

value of Mr. Lucas’ lots, it is no greater than the impacts in

other cases where this Court has recognized that public

interests can justify taking all use or ownership. See POINT

II. Nor is the impact more extreme than the nature of the

public interest requires. South Carolina's dunes and beaches,

like many millions of other acres of America's remaining

natural resource lands -- wetlands, tidelands, reservoir

watersheds, alluvial valley floors -- generally present only

two practical policy choices: Either regulate uses to prevent

permanent loss of these lands' unique ecological character,

or surrender their fate, and the quality of our descendants’

national landbase, to the decisions of transitory market

forces.

The South Carolina General Assembly decided that,

on balance, the harmful effects of beachfront development

were sufficient to justify a prohibition on such use, within

certain lines. The "economic impact" question is, at bottom,

whether this State legislative judgment should be overturned,

at least for this case, because of its incidental effect to

remove all market value from Mr. Lucas’ lots. In other

words, when a regulation's economic impact is very great,

does it become the work of courts to re-exercise de novo that

"large discretion" that is "necessarily vested in the legislature

to determine . . . what measures are necessary" to protect

public interests? Lawton, 152 US at 136 (emphasis added).

Both precedent and practicality suggest not.

The precedents are, of course, the many cases

discussed in POINT II, total takings for which this Court

accepted, rather than re-weigh, the legislatively determined

balance of interests. There are also, however, the practical

concerns:

Knowledge, needs and values evolve with times and

circumstance and, in the process, the innocuous can become

noxious, while the noxious grows benign. A hundred years

ago, beer and margarine were legally noxious while Coca-

Cola was made with cocaine. See Powell v. Pennsylvania,

127 US 678 (1888) (margarine); Mugler v. Kansas, 123 US

623 (1887) (beer); and United States v. Housley, 751 F.Supp

1446, 1447 (D.Nev. 1990) (cocaine). The valued wetlands of

today were the noxious swamps, bogs and marshes of yester-

year. Beaches and riverbanks, once thought the perfect place

for a house, are now viewed from the hindsight of disastrous

floods in a very different way.

Thus, far from being fixed and timeless, the contours

of "nuisance" shift and flux with ever-changing social norms,

knowledge and context. See POINT I. Legislatures, facing

regular re-election and constant constituent contact, are far

better positioned than the judicial branch to exercise that

"large discretion ... to determine, not only what the

interests of the public require, but what measures are

necessary for the protection of such interests." Lawton, 152

US at 136. This is especially so in the economic sphere

where "the fact is that virtually all economic regulation

benefits some segments of the society and harms others."

Columbia v. Omni Outdoor Advertising, 111 SCt 1344, 1352

(1991) (Scalia, J.).

The "reality [is] that determination of ‘the public

interest’ in the manifold areas of government regulation

entails not merely economic and mathematical analysis but

value judgment." Omni Outdoor, 111 SCt at 1352. If legis-

lative decisions to regulate objectionable land uses are "made

subject to ex post facto judicial assessment of ‘the public

interest,’ with personal liability of city officials a possible

consequence, [this Court] will have gone far to ‘compromise

the States’ ability to regulate their domestic commerce," id.

-- and, one might add, to protect the viability of their

domestic landbase.

That, precisely, is why "the constitutional power of

the State to insist that its natural advantages shall remain

unimpaired by its citizens is not dependent upon any nice

estimate of the extent of present use or speculation as to

future needs . . . [T]here are benefits from a great river that

might escape a lawyer's view." Hudson Water Co. v.

McCarter, 209 US 349, 356-57 (1908) (Holmes, J.). And the

same may no doubt be said of a coastline.

In short, this Court may agree or not that South

Carolina's beach setback rules are, on balance, justified by

the potentially deleterious external impacts that they avert, or

that the economic impact on Mr. Lucas is likewise justified.

The question, however, is whether the Takings Clause

enjoins this Court to reach de novo determinations on these

points and then to substitute those new determinations (if

different) for those of South Carolina's General Assembly.

So far as the historical evidence reveals, the Takings

Clause was not originally intended to apply to mere

restrictions on use at all. See, e.g., Treanor, The Origins and

Original Significance of the Just Compensation Clause of the

Fifth Amendment, 94 Yale L.J. 694, 711 (1985). Certainly

no such intention was reflected in the legal institutions of our

country's formative years. See Reznick, Land Use Regulation

and the Concept of Takings in 19th Century America, 40

U.Chi.L.Rev. 854 (1973). As late as 1897, this Court was

still firmly of the view, based on an "immense weight of

authority," that taking required a "physical invasion of the

real estate." Gibson v. United States, 166 US 269, 275-76

(1897), quoting Transportation Co. v. Chicago, 99 US 635,

642 (1878): "[A]cts done in the proper exercise of govern-

mental powers, and not directly encroaching upon private

property, though their consequences may impair its use, are

universally held not to be a taking within the meaning of the

constitutional provision." /d. (emphasis added).

The true origin of the regulatory takings law is Justice

Holmes’ bold and brilliant judicial activism in Pennsylvania

Coal Co. v. Mahon, 260 US 393 (1922). On the "particular

facts" of the case, he discerned a degree of regulation that

amounted to the functional equivalent of a taking, and he

declared it such. Jd. at 414 ("very nearly the same effect for

constitutional purposes"). Notably, the balancing process

that dominated the "substantive due process" part of Holmes'

analysis (260 US at 412-414), played no role at all in his

subsequent “takings” discussion (recently described by this

Court as the "advisory opinion." Keystone, 480 US at 484).

He simply treated as the generic equivalent of a physical

taking that which, to all intents and purposes, had exactly the

same effect as a physical taking.®

To preserve to State legislatures their essential

legislative role to "determine, primarily, what measures are

appropriate or needful for the protection of the public

morals, the public health, or the public safety," Mugler, 123

US at 661, modern regulatory taking review should adhere

to Justice Holmes’ approach in the "takings" portion of

Mahon. So long as the legislative purposes fit within the

"broad range" of the legitima.e and the means are rational,

restrictions on use should not be deemed “takings” unless

they are the full generic equivalent, in function and effect, of

physical requisitions for public use.

Adhering to Holmes’ approach, “takings” would of

determined balance ("the public interest does not warrant much of this

kind of interference") was, of course, quite normal “economic due

process" analysis for the times -- the Lochnerian heyday of activist

review, Lochner v. New York, 198 US 45 (1905) -- but it is quite

contrary to modern “economic due process” standards of review. See,

e.g., Pennell v. San Jose, 485 US 1 (1988); Bowen v. Gilliard, 483 US

587 (1987); Day-Bright Lighting v. Missouri, 342 US 421, 423 (1952)

("we do not sit as a super-legislature”).

course include the entire originally intended ambit of the

Takings Clause -- physically invasive impingements, in the

guise of regulation or otherwise -- plus, at very least, a

strong presumption of "taking" for regulatory actions like

those this Court has previously found to be such. One

obvious example would be a government regulation that

utterly empties a property right of all operational conse-

quence in the real world, so the right becomes effectively

non-existent, precisely as occurred in Mahon. Another

example would be a regulation whose wealth distribution

effects are not merely incidental to legitimate public purposes

but are, indeed, the very aim of the regulation. See, e.g.,

Webb's Fabulous Pharmacies v. Beckwith, 449 US 155

(1980) (state had authorized courts to simply retain interest

earned on money deposited with them). See also Nollan, 483

US at 831 (requiring an owner to dedicate a public

easement). And there is always the unfortunate possibility of

governmental "misuse" of power, such as zoning to depress

land values in anticipation of eminent domain, see Urbani-

zorda Versalles v. Rivera Rios, 701 F2d 993, 999 (lst Cir

1983) -- or, its near relative, an infringement that “utterly

fails to further the end advanced as [its] justification.”

Nollan, 483 US at 837.

Recent decisions of this Court demonstrate clearly

that, even with the traditional deference to legislatures’ land-

use purposes and means, the courts have ample room to

address egregious cases. See, e.g., Nollan, 483 US at 838

("this case does not meet even the most untailored

standards"); and Cleburne v. Cleburne Living Center, 473

US 432, 448 (1985) ("the record does not reveal any rational

basis"). The finer tuning of the land-use policy balance is,

however, for the legislature. Standing alone, the fact that a

public objective has extreme economic impacts on particular

owners should not become a cue for judicial intercession, or

prima facie proof that the legislature's weighing went awry.

The Framers placed their primary faith in elected

legislatures, and it has become our basic constitutional

assumption that, as times, needs and social values change, it

falls within the classic province of elected legislatures to keep

the laws attuned to the changing balance. To be sure, the

legislature's own “determination as to what is a proper exer-

cise of its police powers is not final or conclusive," Lawton,

152 US at 137. But it is true as well that "one branch of the

government cannot encroach on the domain of another

without danger. The safety of our institutions depends in no

small degree on a strict observance of this salutary rule."

Powell v. Pennsylvania, 127 US 678, 685 (1888). Accord,

Bowers v. Hardwick, 478 US 186, 194-95 (1986).

CONCLUSION

The decision below of the Supreme Court of South

Carolina should be affirmed.

Respectfully submitted,