Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

| Supreme Court, U.S,

} >

AO JAN 3.0 1992

No, 91-483 —} Bi THE CLERK

In the

Supreme Court of the

United States

October Term, 1991

DAVID H. LUCAS

Petitioner,

VS.

SOUTH CAROLINA COASTAL COUNCIL

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

BRIEF OF CALIFORNIA CITIES

AND COUNTIES

AS AMICI CURIAE IN SUPPORT

OF RESPONDENT

Carol Korade, City Attorney Katherine E. Stone *

City of Alameda Philip A. Seymour

2263 Santa Clara Avenue Freilich, Stone, Leitner &

Room 314 Carlisle

Alameda, California 94501 11755 Wilshire Boulevard,

(415) 748-4500 Suite 1230

Los Angeles, California 90025

(310) 444-7805

(List of Counsel * Counsel of Record for the

Continued Inside) Amici Curiae

Westside Law Publishers Los Angeles, California (310) 207-0272

LIST OF AMICI CONTINUED

Jack L. White, City Attorney

Eleanor M. Egan, Senior Assistant

City Attorney

City of Anaheim

Judy Skousen, City Attorney

City of Arroyo Grande

Robin D. Faisant, City Attorney

City of Atherton

Gary T. Ragghianti, City Attomey

City of Belvedere

Manuela Albuquerque

City Attorney

Thomas B. Brown, Deputy City

Attomey

City of Berkeley

F. Thomas Caporael,

City Attorney

City of Calimesa

Richard M. Manning, City Attorney

City of Capitola

Ronald R. Ball, Acting City

Attomey

City of Carlsbad

Jimmy L. Gutierrez, City Attorney

City of Chino

Bruce M. Boogaard, City Attorney

City of Chula Vista

Leland D. Stephenson, City Attorney

City of Clovis

Jimmy L. Gutierrez, City Attorney

City of Coachella

William Camil, City Attorney

City of Commerce

Thomas A. Kathe, City Attorney

City of Costa Mesa

Robert Wellington, City Attorney

City of Del Rey Oaks

Daniel T. McCloskey, City Attorney

City of Dinuba

Allen E. Sprague,

City Attorney

City of Fremont

Scott H. Howard, City Attorney

City of Glendale

Roger Picquet, City Attorney

City of Grover City

Gail C. Hutton, City Attorney

Joseph Barron, Deputy City Attorney

City of Huntington Beach

David J. Erwin, City Attorney

City of Indio

Leland D. Stephenson, City Attorney

City of Kingsburg

Charles J. Williams, City Attomey

City of Lafayette

John Calhoun, City Attorney

City of Long Beach

Robert K. Booth, Jr., City Attorney

City of Los Altos

James K. Hahn, City Attorney

Anthony S. Alperin, Assistant City

Attomey

City of Los Angeles

Robert Wellington, City Attorney

City of Marina

M. Dwain Smith, City Attorney

City of McFarland

Leland H. Jordan, City Attorney

City of Mill Valley

(LIST OF AMICI CONTINUED ON BACK INSIDE COVER)

AMICI CURIAE WILL ADDRESS

THE FOLLOWING QUESTIONS:

Whether the State's actions come within the

nuisance exception to the takings clause, and

Whether the State's actions amounted to a taking if

it is determined that the location of the interim

development setback line on Lucas’ property was

inappropriate.

li ill

TABLE OF CONTENTS . 1. The State Interest In Question

Is the Prevention of Unsafe

ee Ge Peepemty .... 1.20:

—_ 2. The Sole Attribute of

Ownership Actually Affected

by the Regulations is the

Right to Develop the Property

AMICI CURIAE WILL ADDRESS’ THE

for Permanent Structures

FOLLOWING QUESTIONS .............

= Intended for Human

TABLE OF CONTENTS ..............-..-+- i | — ...wit

TABLE OF AUTHORITIES ................-. v | B. The State Is Not Required To

BRIEF OF CALIFORNIA CITIES AND | Compensate Private Property Owners

COUNTIES AS AMICI CURIAE IN For Protecting Their Safety Or

SUPPORT OF RESPONDENT ........... Preventing Serious Public Harm ... . .

INTEREST OF THE AMICI CURIAE ........... ! l. Yes, There Is a “Nuisance

STATEMENT OF THE CASE AND THE FACTS .. 2 | _ Mncopon™ ....-......---.

SUMMARY OF ARGUMENT ................ 3 | eee 00 Unerte ox

| Unreasonable Use of Property

Ce re 4 ee Sethe the

I. Constitutional Principles

THE STATE’S ACTIONS COME WITHIN THE Associated With the Nuisance

SO-CALLED “NUISANCE EXCEPTION”

TO THE TAKINGS CLAUSE ........... 4 3. No Compensation Is Required

A. The Question Presented Is Whether Where the Government

The State May Prohibit Unsafe Restricts Unsafe Development

Development On Property Subject To Because Such Action Does

Substantial Natural Hazards, Not Not Result in Denial of Any

Whether The Government May Actual Property Right

Appropriate Private Property For The Protected by the Constitution .

Public Or Prohibit All Use Of

. PPT: UU! 4

iv

The reach of the Fifth Amendment is

limited to government action which

denies legitimate property rights

Property rights themselves are

limited by concepts of reasonableness

The “nuisance exception” simply

marks a limitation on the scope of

“property rights” protected by the

EE et a

There is no_ constitutionally

recognized property right to make an

unreasonable or unsafe use of land ...

An otherwise unreasonable use of

land need not be permitted solely to

preserve a market value .........

The State’s Prohibition On Building

Within An Area Subject To Major

Storm Damage and Beach Erosion

Falls Within The Nuisance

PTET ETT EEE TTT ETE

The Legislative Branch Of

Government Is Properly Charged

With the Primary Authority To

Determine Which Uses of Land Are

Unreasonably Hazardous Or Injurious

To The Public To Merit Prohibition

11

14

18

er eee

RT RET OG or ES

Le pe ee.

l. Determination of Unsafe or

Unreasonably Injurious Uses

Has Traditionally Been a

Matter for the Legislative

he i ee

2. The Legislative Branch Is

Better Equipped to Conduct

Necessary Factual Inquiries

and Establish Public Safety

ES er

3. Case by Case Adjudication

Cannot Be Substituted for

Legislative Judgment .......

4. The Courts May Prevent

Abuse of the “Nuisance”

Doctrine Through Traditional

Review of Legislative

ET ckcceweaeeuae es

THE STATE’S ACTIONS HERE DID NOT

AMOUNT TO A TAKING, PERMANENT

OR TEMPORARY, OF LUCAS'

PROPERTY, EVEN IF IT IS

DETERMINED THAT THE LOCATION

OF THE JNTERIM SETBACK LINE ON

LUCAS’ PROPERTY WAS

a BPP OT CCT Cee

A. No Permanent Taking Has Occurred;

Lucas Can Apply For A Variance . .

23

vi

B. On The Facts Presented There Was

No Temporary Taking ........... 24

1. A Temporary Interruption of

Development Rights Does

Not Automatically Create a

Temporary Taking......... 25

2. The Net Interference with

Petitioner’s Rights Was

Insufficient to Amount to a

3. There Is No Indication of

Substantial Economic Impacts

or Destruction of Lucas’

“Reasonable Investment

Backed Expectations” ...... 28

| ree ee ee eee ee 29

APPENDIX OF AMICI ................. App. 1

Vii

TABLE OF AUTHORITIES

Cases Page(s)

Adolph v. Federal Emergency Management Agency,

854 F.2d 732 (Sth Cir. 1988) ............ 15

Agins v. Tiburon,

DUPED ccaccbcovescvevcees 19

Andrus v. Allard,

a Ye

Armstrong v. United States,

PUP es CRUD ccc ccc scceccces 3, 12

Berman y. Parker,

ee 19, 27

City of Renton v. Playtime Theaters, Inc.,

oo Se odie bas 0 se 00's 19

First English Evangelical Church of Glendale

v. County of Los Angeles

210 Cal.App.3d 1353 (1989) cert. denied,

EE eee ee eee ee 9

First English Evangelical Church of Glendale

v. County of Los Angeles,

482 U.S. 304 (1987) ......... 8, 9, 23, 25, 26

Hadacheck v. Sebastian,

DP CED on tcccceuceweceses 12

Hodel v. Irving,

Ey i. et che ebb esses ees 7

Kaiser Aetna v. United States,

Co are 7

Keystone Bituminous Coal Assoc. v. DeBenedictus,

480 U.S. 470 (1987) ........ 8, 13, 15, 18, 22

Kimball Laundry Co. v. United States,

RE 16

Vill

Lawton vy. Steele,

vcs ne eck cba be eeene 9

Legal Tender Cases,

12 Wall. 457, 79 U.S. 475 (1870) ......... 11

MacLeod v. City of Takoma Park,

257 Md. 477, 263 A.2d 581 (Md. 1970)..... 10

Maple Leaf Investors v. State Dept. of Ecology,

88 Wash. 2d 726, 565 P.2d 1162

ee 15

Miller v. Schoene,

ea 9, 12

Mugler v. Kansas,

123 U.S. 623 (1887) ........ 9, 13, 17, 18, 19

Nectow v. City of Cambridge,

ee ee sk a eee eee eee ows 12

Nollan v. California Coastal Commission, :

GES WB. Bae CRGSE) cc ccc ccc cc ccees 7,14

Omnia Commercial Co. v. United States, :

ee eee 11

Penn Central Transportation Co. v. New York City,

438 U.S. 104 (1987) ............ 12, 13, 27

Pennsylvania Coal Co. v. Mahon,

BP PEED nv ccc ce cccccdccess 12

Ruckelshaus v. Monsanto Co.,

ere eee 12, 13

United States v. Willow River Power Co.,

DUMMIES oc cbcccceccccecss 12

United States v. Riverside Bayview Homes, Inc.,

EE gc apewessesecseces 24

Village of Euclid, Ohio v. Ambler Realty Co..,

CR re 19

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

Sea CED cu cneveeeweeses 12, 13

ea ee REN Ne gata -

-- weer

ix

Williamson County v. Hamilton Bank,

DE cdeeecncoccscerevcs 24

Young v. American Mini Theaters, Inc..,

Se EE owes eves cseseces 19, 28

Zilber v. Town of Moraga,

692 F.Supp. 1195 (N.D. Cal. 1988) ........ 26

Statutes

Federal

Rules of the Supreme Court of the United States

a66 bs <awe eens eee debe bee us l

State

California Civil Code

ERE a ye ae ee 9

BRIEF OF CALIFORNIA CITIES AND COUNTIES AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

Amici cities and counties, political subdivisions of

the State of California, file this brief pursuant to Rules of

the Supreme Court of the United States Rule 37. Amici

have a vital interest in the legal issues presented by this

case which affect the powers and responsibilities of state

and local governments to regulate land use to prevent

public harm. Amici have responsibilities for implementing

state and federal legislation designed to protect lives and

property — from hazards of flooding, earthquakes and as in

this case, ocean waves.

Many cities and counties contain properties on

which the values of common prudence and the desire to

build are in direct conflict. California cities and counties in

particular are likely to host steep, geologically unsiable

hillsides, beaches and ocean bluffs, earthquake faults and

brush choked canyons whose natural cycles involve a major

wild fire every 20 to 30 years. In other areas of the country

natural flooding or unstable soils may pose similar obstacles

to development. These obstacles do not necessarily

discourage an owner's desire to build. Indeed, many

potentially unstable sites, such as oceanfront or hillside land

may be valued at a premium due to their views, privacy or

other factors.

Whereas many buyers might fear the risks associated

with such property, there will always be many who do not

fear to tread, and are often willing to pay a premium for the

opportunity. Often they will be encouraged by salesman,

brokers or developers who can produce experts willing to

dispute the local government's judgment that development

2

on the site is imprudent. Often enough there are grounds for

legitimate scientific debate or disagreement, and the only

thing that is certain is uncertainty.

If the government allows development in such

situations, it is likely to be sued when things later go

wrong. If it takes steps to forbid such development, it will

be faced with claims like the one in this case. The only

infallible judge in such situations is nature herself, and the

verdict can be rendered only by the passage of time.

Amici would like to know how far they may go in

regulating unsafe development; whether they may enact

temporary — or permanent — bans on potentially unsafe

development; and whether they may err on the side of

public health and safety, without exposing themselves to

ruinous claims of damages by individual property owners.

The fiscal realities of local government do not permit health

and safety regulation to proceed on a parcel by parcel basis.

The choice presented to local governments may thus well

be that of accepting substantial financial risks, or not

regulating at all.

Amici submit that the decision of the South Carolina

Supreme Court is correct. Because this Court's decision will

have a direct effect on matters of grave importance to

Amici, Amici respectfully submit this brief to assist the

Court in the resolution of this case.

STATEMENT OF THE CASE AND THE FACTS

Amici adopt respondent's statement of the case and

the facts.

SUMMARY OF ARGUMENT

The Fifth Amendment is “designed to bar

Government from forcing some people alone to bear public

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

by the public as a whole.” Armstrong v. United States,

364 U.S. 40, 49 (1960). The Fifth Amendment does not

guarantee the right to develop property for use which is

unsafe, inconsistent with natural limitations on such use, or

which exposes people to a significant risk of harm. Neither

does the Fifth Amendment require the government to pay

private property owners when government legislates to

prevent such use. The South Carolina State Legislature

found it necessary to restrict the building of permanent

structures intended for human occupation in unstable coastal

areas. The State Legislature’s findings were not contested.

Why then should the State of South Carolina be required to

buy this property in order to prevent Lucas from using his

property in a manner determined inherently unsafe and

potentially damaging to himself and to others?

This case is not about whether government is

immune from takings liability whenever its regulations

advance any legitimate public purpose. This case is about

(1) whether in order to prevent property owners from

developing their land in a manner that exposes themselves

and others to a significant risk of harm, the government

must buy it; and (2) who is entitled to determine what uses

of property pose a sufficient risk of harm that they should

be prohibited — the courts or the legislatures.

The statewide regulations are not challenged in this

case, nor is the methodology for establishing the interim

setback line on Lucas’ property. The state legislation

provides remedies which enabled Lucas to receive a

4

development permit upon his success in the trial court, and

also (as of June 1990) by administrative application. There

appears no question that if the property can in fact be safely

developed, Lucas will be able to fully achieve his original

“investment backed expectations.” Under these

circumstances, Amici believe that the Court cannot find that

the State's actions constitute a “taking,” permanent or

temporary.

ARGUMENT

L.

THE STATE’S ACTIONS COME WITHIN

THE SO-CALLED “NUISANCE

EXCEPTION” TO THE TAKINGS CLAUSE

A. The Question Presented Is Whether

The State May Prohibit Unsafe

Development On Property Subject To

Substantial Natural Hazards, Not

Whether The Government May

Appropriate Private Property For The

Public Or Prohibit All Use Of

Property.

The question presented in this case is whether the

“nuisance exception” authorizes the government to prohibit,

in a proper case, the building of permanent structures on

certain property, without paying compensation. Petitioner

essentially asks this Court to recognize an exception to the

“nuisance exception,” and to hold that there exists an

absolute right to place permanent structures on property,

regardless of the potential risks of harm.

rn

—

1. The State Interest In Question Is the

Prevention of Unsafe Use of Property.

Contrary to petitioner’s framing of the issue, no one

contends that any legitimate public purpose may justify the

relatively drastic use restrictions at issue. This is purely a

straw man. The South Carolina Supreme Court quite clearly

articulated that the basis for its decision was the “nuisance

exception” recognized in prior decisions of this Court.

This is also not a case about public benefits accrued

at the cost of private property rights. It is about a building

restriction imposed primarily to protect public safety, above

all that of petitioner, his family and future owners of the

subject property.

To be sure, the legislative purposes articulated and

served by South Carolina’s coastal act are broad. It may

also be true that the public will coincidentally benefit from

better views or a wider beach as a result. Nevertheless, the

primary function of the particular regulation at issue here

must be viewed simply as prevention of unsafe

development. The legislative findings accompanying the act

specifically note that, “Consequently, without adequate

controls, development unwisely has been sited too close to

the [beach/dune] system.” App. 99, § 48-39-250(4). The

state legislature also found that efforts to protect such

development through artificial means have proven

ineffective, and have in many cases increased the danger of

wave damage both to the owners and others. App. 99, §

48-39-250(5). The legislature concluded that it was in both

“public and private interests” to preclude further

development within the area subject to natural beach

erosion. App. 99-100, § 48-39-250(6).

Section 48-39-260(1)(a) also declares preservation of the

6

beach/dune system is necessary, inter alia, for “protection

of life and property by acting as a buffer from high tides,

storm surge, hurricanes, and normal erosion.” App. 102.

The setback line, seaward of which development

may not take place, is calculated by estimating 40 years

worth of erosion, or imposing a minimum setback of 20

feet from the existing baseline. App. 110-114, § 48-39-280.

The minimum 20 foot setback is premised on the not

unreasonable assumption (in fact, a well documented fact)

that storm conditions may produce erosion well beyond the

highwater mark. It can be argued that this approach is

cautious with respect to properties such as Lucas’.

Nevertheless, the clear intent is to prevent development in

the “buffer zone,” i.e., precisely where it is exposed to

damage from the ocean, whether by direct wave attack, the

undermining of foundations by sand erosion, or other

means.

Nothing in the State’s regulations purports to grant

the public an interest in the lands so restricted, or otherwise

alter their ownership status. The setback regulations do

serve to limit potential public harm. The legislature found

that improperly sited development may actually increase

danger to other properties, and aggravate the problems of

beach erosion, and resulting damage to public and private

resources. App. 99, § 48-39-250(4). The regulations prevent

development where it is likely to become a hazard to its

neighbors. The restrictions also serve to limit the amount of

community-wide damage which may be sustained in a

natural disaster, thus reducing the chances of overload and

breakdown of public rescue, relief and rehabilitative

resources. However, the most important effect is to prevent

the owner himself from becoming a victim.

2. The Sole Attribute of Ownership

Actually Affected by the Regulations is

the Right to Develop the Property for

Permanent Structures Intended for

Human Occupation.

Although the restrictions placed on development of

petitioner’s land are severe, it must be acknowledged that

they affect only one fundamental attribute of ownership —

the right to develop for a particular use. Petitioner retains

full ownership of the property and the right to exclude

others. Cf. Kaiser Aetna v. United States, 444 U.S. 164, 177

(1979). There has been no physical invasion or

appropriation of plaintiff's land. Cf. Nollan v. California

Coastal Commission, 483 U.S. 825, 832 (1987). Petitioner

retains the right to sell or bequeath the property. Cf.

Hodel v. Irving, 481 U.S. 704, 715 (1987); Andrus v.

Allard, 444 U.S. 51, 65-66 (1979).

As to use, the right to build permanent structures

was foreclosed. Even that absolute prohibition was

temporary, however, as the State amended its regulations in

June 1990 to permit owners in Lucas’ position to apply for

development permits under specified restrictions. App. 125,

§ 48-39-290(D). Before that, a iaicial remedy was

available if the regulations were unreasonably applied. Even

during the temporary prohibition petitioner retained the full

right to use his property for the most traditional use of land

in its class, i.e., beachfront recreation. The “taking,” if any,

results only from the State’s interference with the “right” to

build on the land. Whether there is any absolute “right to

build,” and whether denial of this particular “property nght”

necessarily amounts to a taking, are the issues presented.

B. The State Is Not Required To

Compensate Private Property Owners

For Protecting Their Safety Or

Preventing Serious Public Harm.

1. Yes, There Is a “Nuisance Exception”’.

Petitioner suggests that there is in fact no “nuisance

exception” to the Fifth Amendment’s compensation

requirement, and that the “nuisance exception,” by virtue of

its historical origins, properly applies only in cases

involving alleged due process violations. Past decisions of

this Court do not support this contention. Certainly this

Court recently found the “nuisance” rule alive and well in

Keystone Bituminous Coal Assoc. v. DeBenedictus, 480 U.S.

470 (1987). The majority in Keystone would have

immunized the challenged regulations from takings liability

under the nuisance exception. Jd. at 489-492. The four

dissenting justices did not question the existence of a

“nuisance” rule: “We have recognized that a taking does

not occur where the government exercises its unquestioned

authority to prevent a property owner from using his

property to injure others without having to compensate the

value of the forbidden use.” Jd. at 511, emphasis added

(Rehnquist, dissenting). Rather the dissent believed that the

regulations at issue went beyond the scope of the

“nuisance” exception as previously interpreted by this

Court, and would have analyzed the challenged regulations

under a traditional balancing test. /d. at 512.

In First English Evangelical Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987), this Court

similarly gave recognition to the nuisance exception by

specifically reserving to the state court the question of

“whether the county might avoid the conclusion that a

9

compensable taking had occurred by establishing that the

denial of all use was insulated as a part of the State’s

authority to enact safety regulations.” Id. at 313, emphasis

added.’ In view of these recent statements by this Court,

the virtually universal recognition of the “nuisance” rule by

state and the lower federal courts need not be belabored.

2. A Prohibition on Unsafe or

Unreasonable Use of Property Falls

Within the Constitutional Principles

Associated With the Nuisance

Exception.

In the context of this case the term “nuisance

exception” may be misleading. A “nuisance” is often

defined as an activity or use of property which

unreasonably interferes with the use and enjoyment of the

property (public or private) of others. See California Civil

Code § 3479. For Fifth Amendment purposes, however, it

is clear that the “nuisance exception” is not coterminous

with the common law notion of nuisance, but extends to

any activities deemed unreasonably harmful to the public.

Mugler v. Kansas, 123 U.S. 623, 665 (1887); Miller v.

Schoene, 276 U.S. 272, 279 (1928); Lawton v. Steele,

152 U.S. 133 (1894).

It is also clear that the constitutional notion of

“nuisance” extends to activities that are dangerous or

unhealthful to the landowner himself, regardless of whether

'The state court on remand concluded that the moratorium in that

Case was necessary to prevent harm to people and property. First

English Evangelical Church of Glendale v. County of Los Angeles,

210 Cal.App.3d 1353, 1363 (1989), cert. denied, 493 U.S. 1056.

10

this harm may be extended to the general public.’ This

Court has never suggested that a landowner may freely

engage in hazardous or illegal activities, violate building

codes or ignore health laws simply on a showing that any

ill effects will be confined to the premises. Thus an unsafe

building may be condemned, and it is constitutionally

irrelevant that the owner lacks the resources to replace the

structure with a new one. E.g., MacLeod v. City of Takoma

Park, 257 Md. 477, 263 A.2d 581, 584 (Md. 1970). The

same power must necessarily extend to the prohibition of

structures which are deemed inherently unsafe due to

natural hazards or conditions.

Petitioner suggests that regulation directed primarily at protecting

the owner from his own folly smacks of paternalism, and, on the scale

of constitutional values, cannot be used to justify a prohibition on

development. This argument reduces itself to the absurd proposition

that the public, through its government, must pay the individual for the

privilege of preventing him from building his home where the roof may

collapse on his family, or that of a subsequent purchaser, during the

next storm, earthquake or other natural calamity. Despite this nation's

deep rooted attachment to individual freedoms, it has not been found

unconstitutional to deny the individual the right to inflict potential harm

upon him or herself through the pursuit of hazardous activities, the

personal use of drugs, impure water or food, experimental medicines or

even alcoholic beverages. The Fifth Amendment does not carve out a

special “property rights exception” for human folly.

11

3. No Compensation Is Required Where

the Government Restricts Unsafe

Development Because Such Action

Does Not Result in Denial of Any

Actual Property Right Protected by

the Constitution.

The “nuisance exception” is best understood as not

an “exception” to general rules, but rather as integral to the

Fifth Amendment concept of a “taking of property”. The

government is not required to pay “just compensation” for

a prohibition on unsafe or unreasonable uses of land

because by prohibiting such uses, it has not deprived the

owner of any property right or reasonable expectation which

was his to begin with.

a. The reach of the Fifth Amendment is

limited-to government action which

denies legitimate property rights.

The Fifth Amendment does not provide an all-

purpose cure for perceived inequities of governmental

regulation. By its express terms, the Amendment requires

compensation only where private “property” is taken “for

public use’. The Takings Clause was originally

interpreted — probably exactly as the original framers

intended — quite literally. ““That provision has always been

understood as referring only to a direct appropriation, and

not to consequential injuries resulting from the exercise of

lawful power.” Legal Tender Cases, 12 Wall. 457, 79 U.S.

475 (1870). As late as 1922 this Court held in Omnia

Commercial Co. v. United States, 261 U.S. 502, 510 (1923),

that the Takings Clause provided no relief for the

“destruction,” as opposed to appropriation, of private

property.

12

With the rise of pervasive government regulation —

an event likely unforeseen by the framers of the Fifth

Amendment — this Court initially looked primarily to the

due process clauses of the Fifth and Fourteenth

Amendments for a constitutional remedy for excessive

regulation. See, e.g., Nectow v. City of Cambridge, 277 U.S.

183 (1928); Miller, 276 U.S. 272, 280; Hadacheck v.

Sebastian, 239 U.S. 394, 348 (1915).

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

393 (1922), the Takings Clause has assumed a leading role

in the protection of property rights. Indeed, this Court has

given an expansive interpretation of the Takings Clause,

holding that the essential principle is one of “fairness and

justice” in allocating public and private burdens. Penn

Central Transportation Co. v. New York City, 438 U.S. 104,

125 (1978); see Armstrong, 364 U.S. 40, 49 [Fifth

Amendment is “designed to bar Government from forcing

some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a

whole”). Nevertheless, the Fifth Amendment does not — as

some appear to argue — invest the courts with an all-

purpose equitable jurisdiction over the other branches of

government. An indispensable element of any taking —

regulatory or otherwise — is the damage or destruction of

property, or, more precisely, with the “bundle of rights”

associated with property ownership. Absent such an

interference, there is no “taking.” United States v. Willow

River Power Co., 324U.S. 499, 502 (1945); Webb's

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164

(1980); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-

1006 (1984). Thus this Court has often “dismissed ‘taking’

challenges on the ground that, while the challenged

government action caused economic harm, it did not

13

interfere with interests that were sufficiently bound up with

the reasonable expectations of the claimant to constitute

property for Fifth Amendment purposes.” Penn Central,

438 U.S. 104, 124-125.

b. Property rights themselves are limited

by concepts of reasonableness.

The Fifth Amendment also does not create property

rights, nor unreasonable expectations based on ownership of

property. Webb's Fabulous Pharmacies, 449 U.S. 155, 161.

This Court has also iong recognized that property rights are

themselves creatures of law, and primarily state law at that.

Ruckelshaus, 467 U.S. 986, 1001. To be protected, an

owner’s expectations must normally have “the force of the

law behind them.” Beyond this, however, the owner’s

expectations must be reasonable in view of the facts of

nature and particular circumstances of his land.

Cc. The “nuisance exception” simply

marks a limitation on the scope of

“property rights” protected by the

Fifth Amendment.

The essence of the “nuisance exception” is simply

a recognition that the “bundle” of rights inhering from

property ownership does not include the nght to use

property in a manner which is unsafe, hazardous, or

injurious to others. “Long ago it was recognized that ‘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.”’ Keystone, 480 U.S. 470, 492, citing Mugler,

123 U.S. 623, 665. This exception does no more than

recognize an inherent limitation on the notion of property

itself. There is no inherent right to use property in a manner

unreasonably injurious to others, or violative of basic safety

14

regulauon. An individual cannot, by spending money, buy

immunity from legislative judgments regarding basic

questions of public and private safety and welfare.’ Thus,

by barring a nuisance or other unreasonable use of property,

the government does not deprive the landowner of any

property or other right he has ever possessed, and the

property owner has therefore had nothing taken.

d. There is no constitutionally recognized

property right to make an

unreasonable or unsafe use of land.

A necessary consequence of the foregoing is that

there is no absolute right to construct permanent

improvements on unsuitable land. Certainly the right to use

land is among the most important strands of a property

owner's “bundle” of rights. Ordinarily this right would

appear to include the right to make reasonable

improvements on the land. But this right is subject to the

“nuisance” limitation. The Constitution may proscribe

excessive regulation, but it does not require the government

to ignore the limitations placed on prudent development of

property by nature.

*See Nollan, 483 U.S. 825, 837:

“While a ban on shouting fire can be a core exercise

of the State's police power to protect the public

safety, and can thus meet even our stringent standards

for regulation of speech, adding the unrelated

condition alters the purpose to one which, while it

may be legitimate, is inadequate to sustain the ban.

Therefore, even though, in a sense, requiring a $100

tax contribution in order to shout fire is a lesser

restriction on speech than an outright ban, it would

not pass constitutional muster.”

15

Were Lucas’ parcels located on a glacier, on the

Slopes of an active volcano or astride an earthquake fault,

there would be no question of any “right to build.” The

result would be the same were the property located on an

active river floodplain or an unstable hillside, there would

be no question of a “right to build” at all. Adolph vy.

Federal Emergency Management Agency, 854 F.2d -732,

739 (Sth Cir. 1988) [floodplain]; Maple Leaf Investors v.

State Dept. of Ecology, 88 Wash. 2d 726, 565 P.2d 1162

(Wash. 1977). By denying the right to place improvements

on such land the government does not “take” property; it

merely confirms the limitations placed by nature. It is true

that in doing so, the government may impose its judgment

“regarding safety and the severity of natural conditions over

that of the property owner. This however, is a proper

function of government and, if exercised within the bounds

of reason, does not violate the Fifth Amendment.

The risks of construction on petitioner’s property

may also be less self-evident than in other situations.

However, petitioner has nowhere challenged the state

legislature’s findings or conclusions, contended that the

setback line is improperly drawn with respect to his

property, nor provided evidence which would allow a

summary override of the legislature’s conclusions. In a

proper case, an individual in Lucas’ shoes might be able to

establish that the legislature’s judgments were utterly

contrary to established scientific evidence, or wholly

inapplicable to his property. Here, however, petitioner has

provided no basis for challenging the government's

“unquestioned authority” (Keystone, 480 U.S. 470, 51 1) to

establish and enforce safety standards for its citizens.

e. An otherwise unreasonable use of

land need not be permitted solely

to preserve a market value.

Petitioner poses the issue whether the State may

ever deprive his land of all “value,” meaning, presumably

market value, without paying compensation, regardless of

its purpose. Petitioner also appears to suggest that any

property for which he paid several hundred thousand dollars

simply cannot come within the nuisance exception.

If it comes down to it, Amici believe that the

nuisance exception does permit government to extinguish

all “economic” value in a piece of land, if it is marketable

for no use which does not pose a serious risk of harm to its

owner or others. Examples of hazardous property abound in

nature. Government cannot be barred from restraining

unsafe development of such properties simply so that the

owner may market it to the adventurous.

More fundamentally, however, this is not a case in

which all “value” has been denied. Petitioner errs in

equating the right of ownership and reasonable use —

which the Fifth Amendment clearly protects — with

economic or market value. To be sure, market value is the

commonest measure of property value, for reasons long-ago

stated in Kimball Laundry Co. v. United States, 338 U.S. 1,

6-7 (1949). However, market or economic value is

ultimately merely an indicator of value, not value itself.

Certainly the absence of any ascertainable market value

does not relieve the government from paying just

compensation where value exists. Neither does the absence

of market value necessarily and automatically indicate that

government regulations have gone “too far.” This merely

begs the questions of what uses— marketable or

~_-_— ~ —

17

otherwise — remain, and whether the restrictions are

excessive in terms of what uses of the property are

reasonable to begin with. For reasons already stated, the

uses desired by petitioner may be deemed unreasonable by

the State.

Any argument based on economic value ultimately

proves too much. Certainly the market is capable of

creating a value for virtually any attractive property, with

the price set by discounting attractiveness with risk. Lucas’

experience indicates that there certainly may be a market

for risky properties, and one suspects that there would

remain a market (albeit a lower price) for Lucas’ property

were it located 30 feet instead of 300 feet from the present

high water mark. However, the Constitution permits the

State to abolish a market where none ought to exist. See,

e.g., Mugler, 123 U.S. 623, 663. This principle must apply

to real property as any other. Indeed, Lucas’ situation

resembles none so much as that of the owner in Andrus,

444 U.S. 51, who was left with the right to possess and

enjoy, but not to resell his property.

c. The State’s Prohibition On Building

Within An Area Subject To Major

Storm Damage and Beach Erosion

Falls Within The Nuisance Exception.

All elements necessary to support application of the

“nuisance exception” are present in this case. The state

legislature reasonably determined that the band of shoreline

property which includes petitioner’s parcels is subject to

natural forces which make construction of permanent

dwellings unsafe. Petitioner has not challenged the

legislative judgment on this matter; indeed, he has conceded

the validity of the regulations. It may be that Lucas can

18

obtain an exception under the provisions of the act as

amended in 1990; Amici do not contend that the

government must forbid unwise uses of land, but only that

it may. Petitioner has not shown that the State’s initial

determination, however, was arbitrary, unreasonable, or

beyond the proper bounds of government's authority to

protect public and private safety.

D. The Legislative Branch Of

Government Is Properly Charged

With the Primary Authority To

Determine Which Uses of Land Are

Unreasonably Hazardous Or Injurious

To The Public To Merit Prohibition.

It must be acknowledged that the “nuisance

exception” is a limited doctrine, and one which is

potentially subject to abuse. Clearly the “nuisance

exception” is not “coterminous with the police power

itself.” Keystone, 480 U.S. 470, 512 (Rehnquist, dissenting).

The question remains as to which branch of government —

the legislative or judicial — has the principle authority to

determine which uses of property are sufficiently unsafe or

injurious that they transcend the bounds of reasonable use

of property.

1. Determination of Unsafe or

Unreasonably Injurious Uses Has

Traditionally Been a Matter for the

Legislative Branch.

This Court has historically granted the legislative

branch of government the primary role in defining which

harms or ill effects are sufficiently substantial and

detrimental as to justify actual prohibition. In Mugler, for

example, this Court noted:

19

“[a] prohibition simply upon the use of

property for purposes that are declared, by

valid legislation, to be injurious to the

health, morals, or safety of the community,

cannot, in any just sense, be deemed a

taking or appropriation of property.” Mugler,

123 U.S. 623, 668-669.

Since Mugler, this Court has often restated the

importance of deference to legislative judgments in matters

affecting the public health and welfare. Village of Euclid,

Ohio v. Ambler Realty Co., 272 U.S. 365, 392-393 (1926):

Berman v. Parker, 348 U.S. 26, 33 (1954); Agins v.

Tiburon, 447 U.S. 255, 261 (1980); Young v. American

Mini Theaters, Inc., 427 U.S. 50, 55-56 (1976); City of

Renton v. Playtime Theaters, Inc., 475 U.S. 41, 53 (1986).

The same considerations underlying these decisions remain

valid today.

2. The Legislative Branch Is Better

Equipped to Conduct Necessary

Factual Inquiries and Establish Public

Safety Standards.

The legislative branch is far better equipped to

gather, weigh and balance scientific, historical and other

factual data than the court system, which is bound by the

narrow spectrum of facts presented to it by advocates of

varying means and intentions. This case illustrates the

wisdom of this policy. There appears no question that the

legislative decision to establish setback lines came in the

wake of lengthy consideration of available scientific and

historical data, and hard consideration of alternatives. There

is no reason to believe that property owners or other

citizens adversely affected were deprived of the opportunity

20

to fully present their competing interpretations of scientific

facts and realities.

The question of what is unreasonably hazardous or

unreasonably injurious to others is also inherently a matter

of policy judgment as well as factual considerations. Clearly

these questions are properly the province of the legislature

rather than the courts. Opinions may differ, for example, as

to whether homes should be permitted in a zone subject to

catastrophic flooding once every 100 years, or whether

owners should be entitled to risk floods occurring at a

frequency of every 50 years. Similar considerations are

involved in determining how far homes must be set back

from an active earthquake fault, an unstable cliff, or — as

in this case — an active beach. Clearly this is not a

question which can be left to case by case resolution in the

trial courts, nor is it a matter on which the courts are

equipped or intended to resolve policy for society.

3. Case by Case Adjudication Cannot Be

Substituted for Legislative Judgment.

The facts of this case confirm the pitfalls of

entrusting plenary review powers in the courts. There was.

and is, no claim that the State’s objectives were

unreasonable, or that the building setback !ine was arbitrary

or unsuited for its purposes in light of applicable scientific

principles. Nevertheless, the trial court apparently felt that

the Fifth Amendment entitled it to conduct an entirely

independent judgment on validity of the State’s concerns.

At trial petitioner relied almost exclusively on the

fact that his property is currently well removed

(approximately 310 feet) from the highwater line, and that

the area historically is accreting rather than eroding. In

addition, Lucas offered his personal opinion that he

21

considered the risk of selling or building on the property

acceptable. In reply, the State produced unrebutted expert

testimony that the shoreline is inherently unstable; that

major erosional events are to be expected and that these

events may erode the shoreline by as much as 300 feet in

an episode; that petitioner’s property was under water as

recently as 1963 and nearby properties were damaged by

wave action in 1983; and that there are no assurances that

petitioner’s property is safe. The historic accretion process

relied upon by petitioner is very much a case of two steps

forward, one step back, and the backward steps may be

sufficient to endanger petitioner’s property. Despite the

evidence, the trial court concluded that petitioner’s two

parcels were “suitable” for development. There is no

analysis of the actual facts regarding risk to the property.

Another trier of fact might well have found that the

State plainly established a reasonable basis for regulation.

Ultimately the Atlantic Ocean, and neither the legislature

nor the courts, nor individual property owners, will

determine whether Mr. Lucas’ property remains “suitable”

for a home. But neither the government’s power to establish

safety standards nor application of the Fifth Amendment

can be made to depend on hindsight.

4. The Courts May Prevent Abuse of the

“Nuisance” Doctrine Through

Traditional Review of Legislative

Judgment.

Certainly private owners should not be without

remedy against unreasonable government regulation. But a

remedy exists. The courts retain authority to override

legislative dictates that are arbitrary, capricious or enitirely

lacking in factual basis. This rule applies equally to any

22

attempt by the government to label as unsafe or injurious

that which, in the light of scientific fact, is not. In this case,

the Court need not consider whether concerns beyond those

traditionally recognized by the “nuisance exception” may

justify a ban on permanent construction. It may be assumed

that regulations which further only considerations less

pressing than health, safety or (perhaps) the conservation of

essential public resources remain subject to the traditional

analysis stated in past cases.* The remedy, however, does

not lie in merely showing a deprivation of use, without any

showing that the deprivation is beyond the scope of the

government’s power to protect health and safety.

‘Amici do reject any argument that the “nuisance exception” may be

defined exclusively by past case law. See, e.g., Keystone, 480 U.S. 470,

512 (Rehnquist, dissenting). Past adjudication is relevant, but cannot

provide the exclusive answer.

It must be acknowledged that both social values and scientific

understanding are subject to change. As the principles of geological

and ecological causation become better understood, it is inevitable that

activities once thought benign may be discovered to be the actual root

of significant harms. Advances in the field of medicine, for example,

have vastly expanded our field of understanding, and correspondingly

provided grounds for regulation of many activities previously thought

harmless. In the field of geology and ecology, results once thought

inevitable and unavoidable consequences of natural processes may be

traced to man-caused roots.

Adjudication follows rather than precedes the development of

knowledge as a whole. The conception of “nuisance” cannot be made

to rest on past decisions alone. The Legislature's prerogative —

perhaps duty would be a closer description — to prohibit damaging uses

of property is not abated because the harm is a new one, or the

regulations based on a more modem understanding of natural cause and

effect. Such exercises of the police power do not require the payment

of compensation any more now than they did 100 years ago.

23

Il.

THE STATE’S ACTIONS HERE DID NOT

AMOUNT TO A TAKING, PERMANENT

OR TEMPORARY, OF LUCAS'

PROPERTY, EVEN IF IT IS DETERMINED

THAT THE LOCATION OF THE INTERIM

SETBACK LINE ON LUCAS' PROPERTY

WAS INAPPROPRIATE

If the Court determines that the State’s actions were

not immune under the “nuisance exception,” it must still

determine whether the State’s actions amounted to a taking.

Amici believe that in view of the totality of considerations,

there was no taking.

A. No Permanent Taking Has Occurred;

Lucas Can Apply For A Variance.

While a regulatory misstep may require the

government to pay “just compensation,” the Fifth

Amendment does not require the government to become an

involuntary substitute for the free market. In First English,

482 U.S. 304, this Court made it clear that the remedy for

government overregulation is not an automatic involuntary

purchase (or, from the owner’s perspective, forced sale) of

the property. “Once a court determines that a taking has

occurred the government retains the whole range of options

already available— amendment of the regulation,

withdrawal of the invalidated regulation, or exercise of

eminent domain.” /d. at 321. The state statutes in this case

specifically provided the state coastal council with the

authority to issue a building permit to Lucas upon a finding

that a taking had occurred as a result of application of the

setback regulations. App. 132, § 48-39-305(B).

24

Subsequent to the trial the State further enacted a

formal administrative variance procedure which would

permit Lucas, and others similarly situated, to apply for

development approval. App. 125, § 48-39-290(D). Until this

permit procedure has been utilized there has been no

permanent taking. United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 126-127 (1985); Williamson

County v. Hamilton Bank, 473 U.S. 172, 185-186 (1985).

Plainly no permanent taking occurred in this case.

B. On The Facts Presented There Was

No Temporary Taking.

In view of the 1990 amendments to the state coastal

act, the dissenting justices of the South Carolina Supreme

Court would have affirmed the alleged “taking” in this case,

and remanded the matter to the state coastal council for

permit hearings. The majority did not consider the question

of a “temporary taking.” If the judgment is not affirmed in

its entirety, the appropriate course of action would appear

to be a remand for consideration of this issue. Such a

recommendation is included in the brief of the Solicitor

General.

However, Amici believe that this Court may find that

there was in fact no temporary taking. The prohibition on

development of Lucas’ property was not lengthy. It endured

for thirteen and one-half (13%) months, i.e., from the

July 1, 1988 effective date of the legislative restrictions

until August 10, 1989, when Lucas prevailed in the trial

court and the coastal council was vested with authority to

issue him a building permit. Alternately, the restriction

endured approximately two (2) years, i.e., until 1990, when

Lucas became entitled to apply for permits under the 1990

amendments to the state coastal act. Lucas bought one

25

property strictly for resale, and the other for his personal

residence. There is no indication that the long-term property

values have been damaged or that the net delay in

developing or reselling the properties has seriously eroded

Lucas’ “investment backed expectations.” Amici believe that

these facts, considered in light of relevant circumstances, do

not demonstrate a sufficiently serious interference with

property rights as to amount to a taking.

1. A Temporary Interruption of

Development Rights Does Not

Automatically Create a Temporary

Taking.

In First English, 482 U.S. 304, this Court made it

clear that compensation must be paid for temporary as well

as permanent takings of property. The Court, however, left

open the question of when a “temporary” denial of use

becomes a sufficiently serious interference with property

rights as to become an actual taking.

Common sense suggests that an interruption of a day

or a week does not amount to a taking. In First English, the

Court specifically assumed, for purposes of decision, that

“the Los Angeles County ordinances denied appellant all

use of its property for a considerable period of years. . . .”

First English, 482 U.S. 304, 322, emphasis added. The

restrictions had in fact already been in place for over six

years. Jd. at 319. The Court also expressly excluded

consideration of “the quite different questions which would

arise in the cgse of normal delays in obtaining building

permits, changes in zoning ordinances, variances and the

like which are not before us.” /d. at 321.

In First English this Court further stated that

““temporary’ takings . . . which deny a landowner all use of

26

his property, are not different in kind from permanent

takings . . .” suggesting that analysis of temporary takings

requires assessment of the same factors (i.e., character of

the governmental regulation, economic impact, and impacts

on “reasonable investment backed expectations”) as an

alleged permanent “taking.” Jd. at 318, emphasis added.

Under such analysis, a temporary interruption of

development does not automatically result in a temporary

taking; the duration of challenged restrictions is simply one

factor to be considered in assessing their overall impact.

The lower courts have interpreted First English in precisely

this manner. See, e.g., Ziiberv. Town of Moraga,

692 F.Supp. 1195, 1206 (N.D. Cal. 1988) [findin€ that 14

year development moratorium was not a taking4. Under this

analysis, the Court may also consider the character of the

challenged regulations, i.e., their legitimacy and purpose, as

well as economic impact and disruption (if any) of

“reasonable investment backed expectations.”

Amici believe that the lower courts have been

correct. The temporary prohibition on permanent

development of petitioner’s property is not per se a

temporary taking, but must be evaluated on its facts.

Duration and purpose of any temporary bar to development

are significant in determining whether the government

action rises to the level of a taking.

2. The Net Interference with Petitioner’s

Rights Was Insufficient to Amount to

a Taking.

Given the undisputed legitimate purposes of the

South Carolina act, the relatively short duration of the

development prohibition, and the lack of any demonstrated

permanent impact on the economic value of the land or

ed

27

petitioner's investment backed expectations, the Fifth

Amendment does not require the payment of compensation

in this situation. A short term moratorium or interruption of

development rights, incidental to otherwise valid and

reasonable legislation, is not a_ sufficienily serious

interference with property rights that “justice and fairness”

require the payment of compensation. Penn Central,

438 U.S. 104, 125. Rather such interruptions, even if

prompted by overcautious or overinclusive regulation, are

among the “incidents of property ownership” which

property owners may reasonably be required to bear.

Petitioner Lucas, of course, may feel that the state

setback requirement was excessive, and therefere

unreasonable, as applied to his particular property. This,

however, does alter the basic character of the State’s action.

The record indicates that Lucas’ property is removed, if at

all, from the zone subject to storm and erosion damage only

by recent, and not necessarily stable, accretions of sand.

Even were the setback line deemed overcautious with

respect to Lucas’ property, it is clear that inclusion of

Lucas’ property results only from a lack of precision in the

State’s boundary setting. Such imprecision is unavoidable

in any large scale regulatory program. To hold government

strictly accountable for such errors of overinclusion would

be to effectively stifle such programs, regardless of their

overall validity or purpose. In other contexts this Court has

recognized that some latitude must be afforded

governmental agencies in delimiting precise boundaries.

Berman v. Parker, 348 U.S. 26, 35-36. There is also no

claim that the State’s objectives here were illegitimate, that

the means chosen for establishing the setback line were

arbitrary, nor that the underlying problems addressed by the

State legislation are anything short of compelling. As this

28

Court has stated in another context, government “must be

allowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.” Young, 427 U.S.

50, 71. Amici believe that some similar indulgence is

warranted where the government attempts to regulate in

matters directly affecting public health and safety.

At best, Lucas lives on the margin of an area of

unique and special concern, and an area in which special

state regulation could be expected, and in fact existed when

Lucas purchased his lots. The risk of temporary over-

regulation is one which property owners — particularly

those in Mr. Lucas’ situation — may reasonably be asked

to bear as an uncompensated “incident of ownership,” so

long as the overregulation is not unreasonably continued

after the relevant facts are brought to the attention of

government.

3. There Is No Indication of Substantial

Economic Impacts or Destruction of

Lucas’ “Reasonable Investment

Backed Expectations”’.

There is no evidence at this time that a 13 month (or

two year) ban on development of Lucas’ property will

result in any permanent loss of value for the property.

Indeed, the record suggests that the property has and will

continue to appreciate in value. The record is also silent on

loss of “reasonable investment backed expectations.” There

was no threat of confiscation. Lucas purchased one lot for

resale, and acknowledged at trial that holding the property

for some time would not harm him. South Carolina

Supreme Court Transcript of Record, pp.28-29. There is no

indication that any delay caused Lucas in building a

personal home on his other lot, has worked a substantial

29

hardship. Given the nature of the restriction at issue — a

ban on permanent construction — it is material whether

Lucas’ plans required him to make immediate use of the

property, or whether he was prepared from the outset to

permit the property to remain idle for a period of time. At

best, Lucas might be entitled to submit evidence on these

points on remand. However, it would appear more

appropriate to hold that Lucas waived his claim to a

temporary taking by failing to present evidence on this

point at trial.

Given the actual character of the government

regulations at issue, and the lack of demonstrated actual

harm to Lucas, Amici submit that no taking occurred in this

case.

CONCLUSION

For all the foregoing reasons, Amici svbmit that the

decision of the South Carolina Supreme Court should be

affirmed.

Respectfully submitted,

FREILICH, STONE, LEITNER & CARLISLE

By KATHERINE E. STONE

Counsel of Record for Amici

APPENDIX

App. 1

APPENDIX OF AMICI

CAROL KORADE, CITY GARY T. RAGGHIANTI,

ATTORNEY CiTy ATTORNEY

CITY OF ALAMEDA CITY OF BELVEDERE

2263 Santa Clara Avenue 874 Fourth Street

Room 314 San Rafael, CA 94901

Alameda, CA 94501

MANUELA ALBUQUERQUE,

JACK L. WHITE, CITY Crry ATTORNEY

ATTORNEY THOMAS B. BROWN,

ELEANOR M. EGAN, SENIOR DEPUTY CITY

ASSISTANT CITY ATTORNEY ATTORNEY

CiTy OF ANAHEIM CITY OF BERKELEY

200 South Anaheim Martin Luther King, Jr.

Boulevard, Suite 356 Civic Center Building

Anaheim, CA 92805 2180 Milvia Street

Berkeley, CA 94704

JUDY SKOUSEN, CITY

ATTORNEY F. THOMAS CAPOREAL,

CITY OF ARROYO GRANDE CITY ATTORNEY

895 Napa Street, Suite B-6 CITY OF CALIMESA

Post Office Box 834 Post Office Box 1190

Morro Bay, CA 93442 Calimesa, CA 92320

ROBIN D. FAISANT, CITY RICHARD M. MANNING,

ATTORNEY City ATTORNEY

CITY OF ATHERTON CITY OF CAPITOLA

1550 El Camino Real 420 Capitola Avenue

Menlo Park, CA 94025 Capitola, CA 95010

App. 2

RONALD R. BALL, ACTING WILLIAM CAMIL, CITY

CITY ATTORNEY

CITY OF CARLSBAD

1200 Carlsbad Village

Drive

Carlsbad, CA 92008-1989

JIMMY L. GUTIERREZ, CITy

ATTORNEY

CITY OF CHINO

12616 Central Avenue

Chino, CA 91710

BRUCE M. BOOGAARD,

CITY ATTORNEY

CIiTy OF CHULA VISTA

276 Fourth Avenue

Chula Vista, CA 91910

LELAND D. STEPHENSON,

CiTy ATTORNEY

CITY OF CLOVis

Post Office Box 1752

Fresno, CA 93717-1752

JIMMY L. GUTIERREZ, CITY

ATTORNEY

CITY OF COACHELLA

12616 Central Avenue

Chino, CA 91710

ATTORNEY

CITY OF COMMERCE

2535 Commerce Way

Commerce, CA 90040

THOMAS A. KATHE, CITY

ATTORNEY

CITY OF COSTA MESA

77 Fair Drive

Post Office Box 1200

Costa Mesa, CA 92628

ROBERT WELLINGTON,

CiTy ATTORNEY

CITY OF DEL REY OAKS

857 Cass Street, Suite D

Monterey, CA 93940

DANIEL T. MCCLOSKEY,

CITY ATTORNEY

CITY OF DINUBA

Tuttle & McCloskey

351 East Barstow,

Suite 106

Freno, CA 93710

ALLEN E. SPRAGUE, CITY

ATTORNEY

CITY OF FREMONT

39700 Liberty Street

Fremont, CA 94537

App. 3

ScoTT H. HOWARD, CITY

ATTORNEY

Ciry OF GLENDALE

613 East Broadway

Suite 220

Glendale, CA 91206-4394

ROGER PICQUET, CITY

ATTORNEY

Ciry OF GROVER CITY

Post Office Box 922

San Luis Obispo, CA 93406

GAIL C. HUTTON, CITY

ATTORNEY

JOSEPH BARRON, DEPUTY

CITY ATTORNEY

CITY OF HUNTINGTON

BEACH

2000 Main Street

Post Office Box 2740

Huntington Beach,

CA 92647

DAVID J. ERWIN, CITY

ATTORNEY

CITY OF INDIO

Best, Best & Krieger

39-700 Bob Hope Drive

Suite 312

Rancho Mirage, CA 92270

LELAND D. STEPHENSON,

City ATTORNEY

CITY OF KINGSBURG

Post Office Box 1752

Fresno, CA 93717-1752

CHARLES J. WILLIAMS,

City ATTORNEY

CITY OF LAFAYETTE

2530 Arnold Drive

Suite 360

Martinez, CA 94553

JOHN CALHOUN, CITY

ATTORNEY

CITY OF LONG BEACH

333 West Ocean Boulevard

Long Beach, CA 90802

ROBERT K. BOOTH, JR.,

City ATTORNEY

CiTy OF Los ALTOS

One North San Antonio

Road

Los Altos, CA 94022

App. 4

JAMES K. HAHN, CITy

ATTORNEY

ANTHONY S. ALPERIN,

ASSISTANT CITY

ATTORNEY

CiTy OF LOS ANGELES

200 North Main Street

City Hall East Room 1800

Los Angeles, CA 90012

ROBERT WELLINGTON,

CiTy ATTORNEY

CITY OF MARINA

857 Cass Street, Suite D

Monterey, CA 93940

M. DWAIN SMITH, CITy

ATTORNEY

CITY OF MCFARLAND

1120 Kensington Street

Delano, CA 93215

LELAND H. JORDAN, CITY

ATTORNEY

CITY OF MILL VALLEY

47 Skyview Terrace

San Rafael, CA 94903

WILLIAM B. CONNERS,

CITY ATTORNEY

CITY OF MONTEREY

City Hall

Monterey, CA 93940

CHARLES J. WILLIAMS,

CiTy ATTORNEY

CITY OF MORAGA

2530 Arnold Drive

Suite 360

Martinez, CA 94553

JUDY SKOUSEN, CIrTy

ATTORNEY

CITY OF MORRO BAY

895 Napa Street, Suite B-6

Post Office Box 834

Morro Bay, CA 93442

JOHN L. CooK, CITY

ATTORNEY

CITY OF NAPA

955 School Street

Post Office Box 660

Napa, CA 94559-0660

JAYNE WILLIAMS, CITY

ATTORNEY

CITY OF OAKLAND

505 Fourteenth Street

Suite 1200

Oakland, CA 94612

App. 5

DANIEL T. MCCLOSKEY,

CiTy ATTORNEY

CITY OF ORANGE COVE

TUTTLE & MCCLOSKEY

351 East Barstow

Suite 106

Freno, CA 93710

CHARLES J. WILLIAMS,

Ciry ATTORNEY

CITY OF ORINDA

2530 Arnold Drive

Suite 360

Martinez, CA 94553

CHARLES LUEDER, CITY

ATTORNEY

CITY OF OROVILLE

2060 Third Street

Oroville, CA 95965

GARY L. GILLIG, CITY

ATTORNEY

CITY OF OXNARD

300 West Third Street

Oxnard, CA 93030-5790

SUSAN SCHECTMAN, CITY

ATTORNEY

CITY OF PACIFICA

170 Santa Maria Avenue

Pacifica, CA 94044

DAVID J. ERWIN, CITY

ATTORNEY

CiTy OF PALM DESERT

Best, Best & Krieger

39-700 Bob Hope Drive

Suite 312

Rancho Mirage, CA 92270

DAVID J. ALESHIRE, CITY

ATTORNEY

CITY OF PALM SPRINGS

Rutan and Tucker

611 Anton Boulevard

Suite 1400

Costa Mesa, CA 92628

GEORGE S. PEYTON, JR.,

CiTy ATTORNEY

CITY OF PIEDMONT

1999 Harrison Street

Oakland, CA 94612

CHARLES J. WILLIAMS, —

City ATTORNEY

CITY OF PITTSBURG

2530 Arnold Drive

Suite 360 =

Martinez, CA 94553

CAROL B. TANENBAUM,

CiTy ATTORNEY

CITY OF PLACENTIA

401 East Chapman

Placentia, CA 92670

DAVE LARSEN, CITY

ATTORNEY

CITY OF PLEASANT HILL

100 Gregory Lane

Pleasant Hill, CA 94523

MICHAEL ROUSH, CITy

ATTORNEY

DENNIS BEOUGHER,

ASSISTANT CITY

ATTORNEY

CITY OF PLEASANTON

123 Main Street

Post Office Box 520

Pleasanton, CA 94566

DON G. KIRCHER, CITY

ATTORNEY

CITY OF PORT HUENEME

BURKE, WILLIAMS &

SORENSON

2310 E. Ponderosa Drive

Suite 1

Camarillo, CA 93010

App. 6

JEAN LEONARD HARRIS,

City ATTORNEY

CITY OF RANCHO MIRAGE

69-825 Highway 111

Rancho Mirage, CA 92270

RANDALL A. Hays, Ciry

ATTORNEY

CITY OF REDDING

760 Parkview Avenue

Redding, CA 96001-3396

JOHN WOODHEAD, CITY

ATTORNEY

CITY OF RIVERSIDE

3900 Main Street

Riverside, CA 92522

MICHAEL F. DEAN, CiTy

ATTORNEY

CITY OF ROSEVILLE

311 Vernon Street

Roseville, CA 95678

SHARON SIEDORF

CARDENAS,

Ciry ATTORNEY

CITY OF SACRAMENTO

921 Tenth Street

Suite 700

Sacramento, CA 95814-

2717

App. 7

JOHN W. WITT, CITy

ATTORNEY

C. ALAN SUMPTION, CHIEF

DEPUTY CITY

ATTORNEY

City OF SAN DIEGO

525 “B” Street

Suite 2100

San Diego, CA 92101

JOAN GALLO, CITY

ATTORNEY

GEORGE RIOS, ASSISTANT

CiTy ATTORNEY

CITY OF SAN JOSE

151 West Mission Street

San Jose, CA 95110

JEFFREY G. JORGENSEN,

CiTry ATTORNEY

CiTy OF SAN LUIS OBISPO

990 Palm Street

Post Office Box 8100

San Luis Obispo, CA 93403

DANIEL S. HENTSCHKE,

Crry ATTORNEY

Ciry OF SAN MARCOS

BROWN, DIVEN &

HENTSCHKE

12770 High Bluff Drive

Suite 240

San Diego, CA 92130

GARY T. RAGGHIANTI,

CiTy ATTORNEY

CriTy OF SAN RAFAEL

874 Fourth Street

San Rafael, CA 94901

ARTHER R. MONTANDON,

CiTy ATTORNEY

CITY OF SANTA MARIA

110 East Cook Street

Santa Maria, CA 93454

ROBERT M. MYERS, CITY

ATTORNEY

JOSEPH LAWRENCE,

ASSISTANT

Ciry ATTORNEY

Ciry OF SANTA MONICA

1685 Main Street

Room 310

Santa Monica, CA 90401

_—_—_- -— -

App. 8

DAVID J. ALESHIRE, CITY

ATTORNEY

CITY OF SIGNAL HILL

RUTAN AND TUCKER

611 Anton Blvd., Ste 1400

Costa Mesa, CA 92628

DANIEL S. HENTSCHKE,

Ciry ATTORNEY

CITY OF SOLANA BEACH

BROWN, DIVEN &

HENTSCHKE

12770 High Bluff Drive

Suite 240

San Diego, CA 92130

DENNIS CRABB, CITY

ATTORNEY

CITY OF SOUTH LAKE

TAHOE

1052 Tata Lane

South Lake Tahoe, CA

96150-6324

MICHAEL J. O’TOOLE, CITY

ATTORNEY

CITY OF SOUTH

SAN FRANCISCO

315 Maple Avenue

South San Francisco,

CA 94080

M. DWAIN SMITH, CiTy

ATTORNEY

CITY OF TEHACHAPI

1120 Kensington Street

Delano, CA 93215 ——s

PETER BULENS, CITY

ATTORNEY

CITY OF VENTURA

501 Poli Street

Ventura, CA 93002

THOMAS HAAS, CIry

ATTORNEY

PAUL M. VALLE-RIESTRA,

ASSISTANT CITY

ATTORNEY

CITY OF WALNUT CREEK

1666 North Main Street

Post Office Box 8039

Walnut Creek, CA 94596

ROBERT JOEHNCK, CITY

ATTORNEY

Ciry OF WHEATLAND

7430 Morningside Drive

Loomis, CA 95650

App. 9

DAVID NAWI, COUNTY

COUNSEL

SHANE STARK, CHIEF

DEPUTY

COUNTY COUNSEL

COUNTY OF SANTA

BARBARA

105 East Anapamu Street

Santa Barbara, CA 93101

M. NEAL SINGER, TOWN

ATTORNEY

TOWN OF APPLE VALLEY

Singer & Silvergleid

3750 University Avenue,

Suite 550

Riverside, CA 92501

LELAND H. JORDAN, TOWN

ATTORNEY

TOWN OF FAIRFAX

47 Skyview Terrace

San Rafael, CA 94903

ROBERT JOEHNCK, TOWN

ATTORNEY

TOWN OF LOOMIS

7430 Morningside Drive

Loomis, CA 95650

HADDEN ROTH, TOWN

ATTORNEY

TOWN OF ROSS

Roth, Curtin & DeCuir

1050 Northgate Drive

Suite 354

San Rafael, CA 94903

HADDEN ROTH, TOWN

ATTORNEY

TOWN OF SAN ANSELMO

Roth, Curtin & DeCuir

1050 Northgate Drive

Suite 354

San Rafael, CA 94903

ROBERT B. EWING, TOWN

ATTORNEY

TOWN OF TIBURON

1155 Tiburon Boulevard

Tiburon, California 94920

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say. I am and was at all times

herein mentioned, a citizen of the United States and a

resident of the County of Los Angeles, over the age of

eighteen (18) years and not a party to the within action or

proceeding; that my business address is 11852 Santa

Monica Boulevard, Suite 3, Los Angeles, California 90025;

that on January 31, 1992, I served the within Brief Of

California Cities and Counties As Amici Curiae In Support

Ross Of Respondent in said action or proceeding by

depositing true copies thereof, enclosed in a sealed envelope

with postage thereon fully prepaid, in the United States mail

at Los Angeles, California, addressed as follows:

Clerk, United States

Supreme Court

One First Street, NE.

Washington, D.C. 20543

(Express Mail: original

and forty copies)

A. Camden Lewis, Esq.

Lewis, Babcock & Hawkins

1513 Hampton Street

P. O. Box 11208

Columbia, South Carolina 29211

(803) 771-8000

Attorneys for Petitioner

David H. Lucas

C.C. Harness, IT], General Counsel

South Carolina Coastal Council

4130 Faber Place, Suite 300

Charleston, South Carolina 29405

(803) 744-5838

Attorney for Respondent

South Carolina Coastal Council

Gerald M. Finkel, Esq.

Finkel, Goldberg, Sheftman & Altman

P. O. Box 1799

Columbia, South Carolina 29211

David J. Bederman, Of Counsel

Emory University School of Law

Gambrell Hall

Atlanta, Georgia 30322

—

Kenneth W. Starr, Solicitor General

Barry M. Hartman, Acting Ass’t Ronald A. Zumbrun

Attorney General Edward J. Connor, Jr.

Lawrence G. Wallace, Deputy Timothy V. Kassouni

Solicitor General Pacific Legal Foundation

Roger Clegg, Deputy Ass’t. 2700 Gateway Oaks Drive

Attorney General Suite 200

Benedict S. Cohen, Acting Sacramento, California 95833

Deputy Ass’t. Attorney (916) 641-8888

General Attorneys for Amicus Curiae

Edwin S. Kennedler, Ass’t. Pacific Legal Foundation

to the Solicitor General

Peter R. Steenland

James E. Bryson

Martin W. Matzen

Department of Justice

Washington, D. C. 20530

(202) 514-2217

Attorneys for United States

I declare under penalty of perjury that the foregoing

is true and correct. Executed on January 31, 1992, at Los

Angeles, California.

Betiy J. Malloy

(Original signed)

LIST OF AMICI CONTINUED

William B. Conners, City Attorney

City of Monterey

Charles J. Williams, City Attorney

City of Moraga

Judy Skousen, City Attorney

City of Morro Bay

John L. Cook, City Attorney

City of Napa

Jayne Williams, City Attorney

City of Oakland

Daniel T. McCloskey, City Attorney

City of Orange Cove

Charles J. Williams, City Attorney

City of Orinda

Charles Lueder, City Attorney

City of Oroville

Gary L. Gillig, City Attomey

City of Oxnard

Susan Schectman, City Attomey

City of Pacifica

David J. Erwin, City Attorney

City of Palm Desert

David J. Aleshire, City Attorney

City of Palm Springs

George S. Peyton, Jr., City Attomey

City of Piedmont

Charles J. Williams, City Attomey

City of Pittsburg

Carol B. Tanenbaum, City Attorney

City of Placentia

Dave Larsen, City Attorney

City of Pleasant Hill

Michael Roush, City Attorney

Dennis Beougher, Assistant City

Attomey

City of Pleasanton

Don G. Kircher, City Attorney

City of Port Hueneme

Jean Leonard Harris, City Attorney

City of Rancho Mirage

Randall A. Hays, City Attorney

City of Redding

John Woodhead, City Attorney

City of Riverside

Michael F. Dean, City Attorney

City of Roseville

Sharon Siedorf Cardenas,

City Attorney

City of Sacramento

John W. Witt, City Attorney

C. Alan Sumption, Chief Deputy

City Attorney

City of San Diego

Joan Gallo, City Attorney

George Rios, Assistant City

Attomey

City of San Jose

Jeffrey G. Jorgensen, City Attorney

City of San Luis Obispo

Daniel S. Hentschke,

City Attorney

City of San Marcos

Gary T. Ragghianti, City Attorney

City of San Rafael

Arther R. Montandon, City Attorney

City of Santa Mana

Robert M. Meyers, City Attorney

Joseph Lawrence, Assistant

City Attorney

City of Santa Monica

(LIST OF AMICI CONTINUED ON BACK OUTSIDE COVER)

LIST OF AMICI CONTINUED

David J. Aleshire, City Attorney

City of Signal Hill

Daniel S. Hentschke,

City Attorney

City of Solana Beach

Dennis Crabb, City Attorney

City of South Lake Tahoe

Michael J. O'Toole, City

Attomey

City of South San Francisco

M. Dwain Smith, City Attorney

City of Tehachapi

Peter Bulens, City Attorney

City of Ventura

Thomas Haas, City Attorney

Pau] M. Valle-Riestra, Assistant

City Attorney

City of Walnut Creek

Robert Joehnck, City Attorney

City of Wheatland

David Nawi, County Counsel

Shane Stark, Deputy County Counsel

County of Santa Barbara

M. Neal Singer, Town Attorney

Town of Apple Valley

Leland H. Jordon, Town

Attomey

Town of Fairfax

Robert Joehnck, Town Attorney

Town of Loomis

Hadden Roth, Town Attorney

Town of Ross

Hadden Roth, Town Attomey

Town of San Anselmo

Robert B. Ewing, Town

Attomey

Town of Tiburon