Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

No. 91-453

In The

Supreme Court of the United States

October Term, 1991

e

DAVID H. LUCAS,

Petitioner,

VS.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

>

On Writ of Certiorari To The

Supreme Court Of South Carolina

Sa

BRIEF OF AMICI CURIAE

BROWARD COUNTY, LEON COUNTY, MANATEE COUNTY

AND THE

CITY OF NORTH MIAMI BEACH

IN SUPPORT OF RESPONDENTS

JOHN J. COPELAN, JR.*

County Attorney for Broward County

MELISSA P. ANDERSON

Assisiant County Attorney

Suite 423, Governmental Center

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Telephone: (305) 357-7600

Telecopier: (305) 357-7641

* Counsel of Record

(Additional Amici Curiae

Counsel Listed in Appendix)

'BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

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STATEMENT OF INTEREST OF AMICI CURIAE ................ |

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TABLE OF AUTHORITIES

Cases Page

Ciampitti v. U.S.

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Connolly v. Pension Benefit Guar. Corp.

SIS GD BEN CHEEED seurenstnisentiimimniimndamine 8

First English Evangelical Lutheran Church v.

County of Los Angeles

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Florida Rock Industries, Inc. v. U.S.

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Graham v. Estuary Properties, Inc.

FOO Re SSPE EA. GOD csccccssnnssscnsesnsteanscattinadainiiamien 4,8

Just v. Marinette County

POA ee 4,5,7

Keystone Bituminous Coal Ass'n v. DeBenedictis

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Loretto v. Teleprompter Manhattan CATV Corp.

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Loveladies Harbor Inc. v. U.S.

pif ee | NUNN 8,9, 10

Lucas v. South Carolina Coastal Council

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McNulty v. Town of Indialantic

727 F.Supp. 604 (M.D. Fla. 1989) 2.........cccccccecsceeseeeeeeeees 4,8

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

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Pennsylvania Coal Co. v. Mahon

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Page

Constitutions

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Other Authorities

L.C. Becker, Property Rights:

Philisophic Foundations 2 (1983) .........cccccceccreeeeee 34

J.G. Gosselink and W.J. Mitsch,

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D.B. Hunter, An Ecological Perspective on

Property: A Call for Judicial Protection

of the Public's Interest in Environmentally

Critical Resources, 12 Harv. Envtl. L.

Ce wnsossncnasseszvse Oy Sy D

A. Leopold, A Sand County Almanac 214-220 (1987) ...........0++ 3

W.M. Treanor, The Origins and Original

Significance of the Just Compensation

Clause of the Fifth Amendment, 94 Yale

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Rule 37.5, Rules of the

Supreme Court of the United States .................::::cceeeeeeees

No. 91-453

In The

Supreme Court of the United States

October Term, 1991

>

DAVID H. LUCAS,

Petitioner,

VS.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

.

On Writ of Certiorari To The

Supreme Court Of South Carolina

~o

BRIEF OF AMICI CURIAE

BROWARD COUNTY, LEON COUNTY, MANATEE COUNTY

AND THE

CITY OF NORTH MIAMI BEACH

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST OF AMICI CURIAE

The local governments participating in this amici curiae brief

have a vital interest in the instant case since they are charged with the

protection of the health, safety, and welfare of their citizens. The local

governments participating in this amici curiae brief believe that the

preservation of sensitive natural resources through local government

regulation is essential to the continued health, safety, and welfare of

their citizens.

Pursuant to Rule 37.5 of the Rules of the Supreme Court of the

|

United States, the participants in this amici curiae brief, as political

subdivisions of states, do not need the consent of either party to file

this brief on behalf of respondent.

ry’

SUMMARY OF ARGUMENT

In the instant case, this Court must decide whether the property

rights guaranteed by the Fifth Amendment to the United States

Constitution include the right to use one’s property in such a way as

to cause a harm to the public. If this Court agrees with respondent that

one’s right to property does not include the right to use that property

in a way that will harm the public, this Court must then address

respondent’s assertion, upheld by the South Carolina Supreme Court,

that the destruction of a sensitive natural resource such as a coastal

area or a wetland causes a public harm.

The Fifth Amendment guarantees that ‘’private property shall

not be taken for public use, without just compensation.” U.S. Const.

amend. V. When a governmental regulation of land affects the value

of property so profoundly as to deny all economically viable use of the

land, the governmental entity must compensate the property owner.

Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470

(1987). However, the governmental entity is not required to compen-

sate a property owner for prohibiting uses of the land which would

cause a public harm. Id. at 491.

In the instant case, the South Carolina Supreme Court upheld a

statute which prohibited development in certain coastal areas. Lucas

v. South Carolina Coastal Council, 404 $.E.2d 895 (S.C. 1991). The

court found that the statute prevented a public harm because it

prohibited the use of the land in ways which would have resulted in

destruction of the coastal ecosystem. Id. at 901. Therefore, the court

held that the property owner was not entitled to compensation because

the statute did not result in a taking, although the property owner had

been denied all economically viable use of the land. Id.

The South Carolina Supreme Court's decision in the instant

case follows an emerging theory in property rights jurisprudence. Just

as the right to bear arms or the right to free speech is not an unlimited

right, the right to use private property is not absolute. L.C. Becker,

Property Rights: Philisophic Foundations 2 (1983). The right of

landowners to use their property must be weighed against the right of

the public to be free from the harm caused by certain uses of sensitive

natural resources. D.B. Hunter, An Ecological Perspective on Prop-

erty: A Call for Judicial Protection of the Public's Interest in

Environmentally Critical Resources, 12 Harv. Envtl. L. Rev. 311

(1989).

In balancing the right of a property owner against the right of

the public to be free from harm, courts must view land as more than

property. Courts must look to the role of iand as part of a living

system. This living system is a community of interdependent parts,

typically refered to as an “ecosystem” or the “environment.””' Indi-

viduals are also a part of this living system and anything which affects

land eventually affects individuals. Therefore, a property owner

should not be allowed to exploit his or her property in such a way as

to cause harm to the public.

ARGUMENT

A. The origin of property rights and their relation to land

James Madison, one of the most ardent proponents of the

takings clause of the Fifth Amendment before it was ratified, intended

the clause to guarantee the inviolability of one’s right to possess

private property. W.M. Treanor, The Origins and Original Signifi-

1. Aldo Leopold explained the living system of which land and humans are a

part as a “pyramid.” In this pyramid, energy flows from one level to the next,

proceeding from the soil on up to large carnivores. Each level of the pyramid ts

dependent upon every other level for survival. Whenever a level of the pyramid ts

destroyed or altered, the other levels of the pyramid are atfected.

As Leopold noted, each level of the pyramid 1s always in some way changing.

Human induced changes, however, tend to be much more catastrophic than change

wrought by nature. Thus, human induced changes are more likely to radically affect

and, perhaps, break down the pyramid. A Leopold, A Sand County Almanac 214-220

(1987).

cance of the Just Compensation Clause of the Fifth Amendment, 94

Yale L.J. 694, 712 (1986). Madison’s intent, however, was that the

takings clause apply only to physical takings, as is evidenced by his

draft of the clause: “No person shall be obliged . . . to relinquish his

property, where it may be necessary for public use without just

compensation.” /d. n.22; id. at 711 n.95 (emphasis added). As with

the entirety of the Bill of Rights, the takings clause of the Fifth

Amendment was passed to protect the rights of the individual from

governmental or majoritarian interference.

No right guaranteed by the Constitution, however, is absolute.

The determination of the extent to which each right protects an indi-

vidual’s actions, whether it is one of free speech, the right to bear

arms, or the right to possess private property, is always a balance

between the protection of the individual versus the protection of

society. L.C. Becker, supra at 2. In the case of property rights, the

question is whether the Fifth Amendment guarantees a property

owner the right to exploit his or her property in such a manner as to

threaten the health, safety, and welfare of individuals.

Only in the last twenty-five years have Americans come to

recognize that their health, safety, and welfare are inextricably linked

with the health of the environment.’ Statutory law developed rela-

tively quickly in response to this new cognizance of the individual's

role within the environment. The courts, however, particularly in the

area of takings jurisprudence and what constitutes a “property right”

in relation to the destruction of natural ecosystems, are only now

beginning to examine outdated jurisprudence. Keystone Bituminous

Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987); McNulty v. Town

of Indialantic, 727 F.Supp. 604 (M.D. Fla. 1989); Graham v. Estuary

Properties, Inc., 399 So.2d 1374 (Fla. 1981); Just v. Marinette

2. As one recent commentator noted, it was during the 1960's, when society

wrestled with the devastating effect pesticides had on birds and other mammals, that

people came to realize that, as technologically advanced as society might grow,

individuals were still a part of the environment and subject to its rules, rather than its

master. Hunter, An Ecological Perspective on Property: A Call for Judicial Protec-

tion of the Public's Interest in Environmentally Critical Resources, \2 Harv. Envt.

L. Rev. 311, 314 (1989).

County, 201 N.W.2d 761 (Wis. 1972).

Takings jurisprudence has traditionally viewed land from only

one perspective -- land as “property.” The Fifth Amendment to the

United States Constitution primarily protects a person’s economic

interest in land. Hunter, supra, at 311. It is only when land is viewed

economically, i.e. as a commodity, that it becomes property.’ The

concept of land as property is useful and necessary in a free market

economy. However, this narrow perspective is inhibitive and damag-

ing if it is a court’s only focus when contemplating the rights

guaranteed by the takings clause of the Fifth Amendment. A court

must look beyond land’s economic value in order to recognize the

land’s value to the public in the maintenance of society’s health,

safety, and welfare.

In the instant case, the South Carolina Supreme Court took an

enlightened view as to what constituted a property right. The court

went beyond the concept of land as solely “property.” Lucas, 404

S.E.2d at 898. The court analyzed the South Carolina statute from a

wider perspective, one which took into account the value of the land

as a sensitive natural resource which was part of a living system, as

well as the monetary value of the land to the landowner. The court

concluded that property rights did not include the right to harm the

public by destroying a sensitive natural resource. Id. at 902.

In order to determine what constitutes a property right, this

Court will have to balance the right of the individual to use his or her

property against the right of others not to be adversely affected by that

individual's actions. It is imperative, in making this determination,

that this Court also view land as part of a living system, because 1n-

dividuals are a part of this living system. Any action which destroys

a part of the living system adversely affects individuals.

3. Although the takings clause also protects a person's basic right to hold private

property by stating that property can only be taken for “a public purpose,” because

States are often given tremendous leeway in the use of police power and what

constitutes a "public purpose,” the clause’s greatest protection of private property

rights enures through its guarantee of compensation should the property be “taken.”

B. Takings Analysis

In deciding whether a regulatory taking has occurred, courts

have considered four factors. First, the courts determine whether the

nature of the government's interference is an actual invasion of the

property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (1982). With one exception, a taking occurs where the govern-

mental regulation results in a physical invasion of the land and, if the

regulation is a valid exercise of police power, the landowner must be

compensated. Id. If the regulation is not a valid exercise of police

power, than the regulation is invalidated and the landowner may seek

compensation for the time the regulation affected his or her property.

First English Evangelical Lutheran Church v. County of Los Angeles,

482 U.S. 304 (1987). The one exception to this physical invasion rule

arises if the regulation prevents a public harm. Keystone Bituminous

Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).

The courts next determine whether the regulation was a valid

exercise of police power. /d. The validity of the police power requires

a two part examination: (1) the regulation must have been enacted for

a public purpose; and (2) the regulation cannot be arbitrary or

unreasonable. Id.

The third factor the courts consider is the diminution in the value

of the land caused by the regulation. Penn Central Transp. Co. v. City

of New York, 438 U.S. 104 (1978). Diminution in value is balanced

against the amount of public benefit or prevention of public harm

gained from the regulation. /d. The greater the benefit gained or harm

prevented, the less likely a taking has occurred.

The last factor the courts consider is the extent the property

owner s distinct investment backed expectations were dashed by the

regulation. Keystone, 480 U.S. at 485. For instance, if the property

owner bought the property in full realization that certain governmen-

tal restrictions prohibited development of the property, then the

property owner lacks distinct investment backed expectations and the

landowners takings claim, as tong as the regulation is a valid exercise

of police power, will fail. Ciampitti vy. U.S... 22 CL.Ct. 310 (1991).

The South Carolina legislature in the instant case enacted a

statute prohibiting the construction on coastal property beyond a

certain setback line. Lucas, 404 S.E.2d at 895. The legislature, in the

findings and policy section of the statute, stated the statute was

enacted in order “to protect life and property by serving as a storm

barrier,” as well as to preserve the “habitat for numerous species of

plants and animals, several of which are threatened or endangered.”

404 S.E.2d at 897. The South Carolina Supreme Court ruled that the

statute was not a taking because it prevented a public harm by

ensuring safety through the preservation of the coastline as a storm

barrier, as well as the preservation of the coastline’s function as a

sensitive natural resource. Id. at 901. The opinion of the South

Carolina Supreme Court adopted the emerging theory that regulations

preventing public harm by prohibiting the destruction of certain

sensitive natural resources are not takings although such regulations

preclude all economically viable use of the property.

Just v. Marinette County, 201 N.W.2d 761 (Wis. 1972) was the

first instance wherein a court determined that a regulation enacted to

prohibit the development of sensitive natural resources, the destruc-

tion of which would cause a public harm, was not a taking of the land

even though all economically viable use of the land was precluded.

Similar to the instant case, the property owner in Just challenged a

regulation which protected the shore of Wisconsin’s lakes against

development beyond a certain setback from the water. /d. at 764. In

upholding the shoreline protection regulations against the property

owner's challenge that the government action effected a taking, the

Wisconsin Supreme Court stated the “necessity for monetary com-

pensation for loss suffered to an owner by police power restriction

arises when restrictions are placed on property in order to create a

public benefit rather than to prevent a public harm.” /d. at 767.

The court in Just crystallized a previously ambiguous notion--

a person's private property right does not include the right to destroy

natural resources if such destruction resulted in public harm. /d. at

768. Fifteen years later, in Keystone, this Court introduced a similar

jurisprudence in regard to the property rights guaranteed by the Fifth

Amendment to the United States Constitution. 480 U.S. at 491-92.

Keystone was not decided solely on a prevention of public harm

theory. This Court, however, in deciding that the governmental

regulation prohibiting coal mining in certain areas was not a taking,

stated that the property right guarantee does not include the right to

use one’s property in such a way as to harm the public. /d.

In Keystone, this Court referred to Justice Holmes’ “reciprocity

of advantage” theory set forth in Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922), and elaborated that, although the value of a land-

owner’s property might diminish somewhat due to governmental

restriction, the landowner, as a member of society as a whole,

benefitted from the imposition of such restrictions because a public

harm was prevented. /d. at491. This Court stressed in Keystone that,

although the diminution in the value of the property must be looked

to in determining whether a taking had occurred, the takings clause

was not intended to “require the States or the courts to calculate

whether a-specific individual has suffered burdens . . . in excess of the

benefits received.” /d. at 491 n.21. Implicit in this Court’s analysis in

Keystone, as well as other takings cases this Court has decided, is that

the takings analysis was never meant to be a scientific process.

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986); Penn

Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). The

takings analysis by necessity weighs each factor in the case, i.e the

good promoted or harm prevented, loss in investment backed expec-

tations, and decline in value of the property, to determine what would

constitute a fair decision.

Similar to the South Carolina Supreme Court in the instant case,

a number of state supreme court decisions and lower federal court

decisions have adopted the Keystone prevention of public harm

theory to protect irreplaceable natural resources. McNulty v. Town of

Indialantic, 727 F.Supp. 604 (M.D. Fla. 1989); Graham v. Estuary

Properties, Inc., 399 So.2d 1374 (Fla. 1981). Tworecent claims court

cases, however, have refused to give the theory credibility. Both

Loveladies Harbor, Inc. v. U.S., 21 Cl.Ct. 153 (1990), and Florida

Rock Industries, Inc. v. U.S., 21 Cl.Ct. 161 (1990), dismissed the

theory that the prevention of the destruction of wetlands did not

constitute a taking because such prevention avoided a public harm. In

both cases the claims court found that a taking occurred.

The facts of Loveladies and Florida Rock are similar to each

other. In each case, the landowner brought a challenge against an

Army Corps of Engineers (“Corps”) denial of a dredge and fill permit.

In each case the claims court found there was no economically viable

use left in the land after the Corps permit denial. Therefore, both

courts held a taking had occurred. The claims court refused in either

case to entertain the theory, upheld in Keystone, that a regulation

prohibiting the development or use of sensitive natural resources, the

destruction of which would have caused a public harm, was not a

taking.

The court in Florida Rock lightly dismissed the Corps’ assertion

that the Corps was preventing a public harm by prohibiting mining on

wetlands contiguous to the Florida Everglades. The court stated that

no evidence was introduced at trial showing that pollution would have

been caused by the proposed mining activity. Further, the court found

that even if evidence as to pollution had been introduced, it was “clear

that the nuisance exception to the fifth amendment’s requirement of

just compensation [was] inappropriate” in that instance. 21 Cl.Ct. at

173. The mining of wetlands, the court stated, did not cause the type

of harm that could be defined as a nuisance. /d.

It is generally understood that a nuisance is an act which results

in injury to a specific person or to the public as a whole. 58 Am. Jur.

2d, Nuisances § |. The court's statement regarding the applicability

of the nuisance exception implies the court did not believe the

pollution, habitat destruction, and loss of water recharge area which

would have been caused by the mining of the wetlands constituted an

injury to the health, safety, and welfare of the citizens of South

Florida. However, the environmental sciences have proven time and

again that certain sensitive natural ecosystems are vital to our contin-

ued health, safety, and welfare as humans. See, e.g., J.G. Gosselink

and W.J. Mitsch, Wetlands 393-406 (1986).

The flaw in the claims court's reasoning in holding that the

nuisance exception does not apply is further demonstrated in the

court's failure to explain why the public harm exception was appli-

cable in Keystone but not applicable in Florida Rock. \n both Florida

Rock and Keystone the regulations being challenged as a taking

concerned mining activities. In Keystone, the mining activity would

have caused subsidence to the land above, while in Florida Rock, the

mining activity would have caused pollution, habitat destruction, and

loss of water recharge area. The logical extension of the court's

decision in Florida Rock is that subsidence threatened in Keystone

was a greater harm than the mining activity in Florida Rock. Once

again, however, the court failed to explain why the subsidence as a

result of the mining in Keystone was a greater threat than the pollution

and other deleterious effects of mining in wetlands in Florida Rock.

Florida Rock and Loveladies Harbor failed to recognize the

effect of the development and mining of wetlands. Further, Love-

ladies and Florida Rock reduced the takings analysis to a number

crunching exercise, something that this Court stated the takings

analysis was never meant to be. Keystone, 480 U.S. at 491-92.

Loveladies and Florida Rock focused almost exclusively on the

comparison of fair market value of the land before and after the

governmental regulations affected the land. Both cases virtually

ignored the purpose that the governmental regulation sought to

further, the prevention of destruction of sensitive natural resources

which were a vital part of a living system. The very heart of the takings

analysis was overlooked in Florida Rock and Loveladies -- that acourt

should balance the importance of the governmental purpose in enact-

ing the regulation against the detriment to the landowner.

10

CONCLUSION

This Court should affirm the South Carolina Supreme Court's

decision in the instant case. The South Carolina’s Supreme Court's

decision adopted an expansive view of “land.” In one aspect, land is

property. Property owners are afforded certain rights under the Fifth

Amendment to the United States Constitution. Land, however, is also

a public resource. Although through legal fiction land may be divided

into tracts, in reality, land as a whole is a vital part of a living system

of which individuals are a part. If a property owner's actions destroy

a part of this living system, individuals are harmed. The importance

of land as part of a living system and the harm that results from the

destruction of certain sensitive natural resources has been empirically

proven.

Therefore, the right to private ownership of land must be

balanced against the right of individuals not to be harmed by the

actions of property owners in utilizing such land. Under the United

States Constitution, a person has a right to bear arms, but one does not

have the right to use those arms to kill others. Individuals, likewise,

have the right to free speech, yet one may not incite violence through

the use of speech. In a similar light, a person has the right to private

property under the fifth amendment. Yet one does not have the right

to use such land in a way that would cause harm to the public.

Respectfully submitted,

JOHN J. COPELAN, JR.*

County Attorney for Broward County

MELISSA P. ANDERSON

Assistant County Attorney

Suite 423, Governmental Center

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Telephone: (305) 357-7600

Telecopier: (305) 357-7641

*Counsel of Record

(Additional Amici Curiae

Counsel Listed in Appendix)

11

APPENDIX

ADDITIONAL COUNSEL FOR AMICI CURIAE

HERBERT W.A. THIELE

County Attorney for Leon County

Leon County Courthouse

Tallahassee, FL 32301

Telephone: (904) 487-1008

H. HAMILTON RICE, JR.

County Attorney for Manatee County

MARK P. BARNEBEY

Senior Assistant County Attorney

Post Office Box 1000

Bradenten, FL 34206

Telephone: (813) 745-3750

HOWARD B. LENARD

City Attorney for City of

North Miami Beach

17011 N.E. 19th Avenue

North Miami Beach, FL 33162

Telephone: (305) 947-7581

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