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

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## Record

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

## Text

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

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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.
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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

A-|

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A29. Public record. Not legal advice.