# Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A28

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1003

## Text

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A28. Public record. Not legal advice.