Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

a

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

7

BRIEF OF AMICUS CURIAE STATE OF CALIFORNIA

IN SUPPORT OF RESPONDENT

¢

Danie. E. LUNGREN

Attorney General

Roperick E. WaLsToNn

Chief Assistant Attorney

General

JAN S. STEVENS

Assistant Attorney General

*RICHARD M. FRANK

Craic C. THOMPSON

Supervising Deputy Attorneys

General

Maria DANTE BROWN

ViRNA L. SANTOS

Deputy Attorneys General

1515 K Street, Suite 511

Sacramento, Ca. 95814

(916) 445-8178

(*Counsel of Record)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

This case involves the application to petitioner’s coastal

properties of the South Carolina Beachfront Management

Act. That Act initially prohibited petitioner from building

permanent, habitable structures on his parcels seaward of

a setback line established by respondent. The questions

presented are:

1.

Whether application of the Act, which was enacted in

principal part to respond to documented safety-

related hazards, results in a unconstitutional taking of

petitioner’s property for which compensation is

required, where petitioner failed to contest the safety-

related basis for the Act, and where his exclusive

showing below related to the Act’s effect on the value

of his property.

Whether petitioner’s permanent takings claim has

been rendered moot as a result of 1990 amendments

to the Act which afford petitioner the opportunity to

develop his lots, and whether his constitutional

claims, including any theory based on an alleged

temporary taking of his property, remain ripe in light

of the same amendments.

il

TABLE OF CONTENTS

QUESTIONS PRESENTE ....cccceccccccvccusuneues i

INTEREST OF AMICUS STATE OF CALIFORNIA... 1

STATEMENT OF THE CAGG. ..........ccecectnnuun 4

SUMMARY OF ARGUMENT.....................-- 4

ATATIGINT oo cc ccscccnsscceeence enna errr. 6

I. GOVERNMENT REGULATION DESIGNED TO

PREVENT OR LIMIT PRIVATE ACTIVITIES

THAT THREATEN PUBLIC HEALTH OR

SAFETY DO NOT CONSTITUTE COMPENS-

ABLE TAKINGS, REGARDLESS OF THEIR

ECONOMIC IMPACT ON AFFECTED PROP-

A. The “Nuisance Exception” to Takings Juris-

prudence is both Longstanding and Well-

eee ae

B. The Nuisance Exception is Properly Limited

to those Police Power Measures Which Are

Based in Principal Part on Objectively-Veri-

fiable Health and Safety Concerns ........ 14

Il. THIS COURT SHOULD NOT BE REQUIRED TO

DETERMINE WHETHER APPLICATION OF

THE SOUTH CAROLINA STATUTE TO PETI-

TIONER’S PROPERTY QUALIFIES UNDER

THE NUISANCE EXCEPTION; IF DEFERENCE

TO THE STATE COURT'S FINDING CANNOT

BE MADE, THE PROPER DISPOSITION IS TO

REMAND FOR FURTHER PROCEEDINGS .... 20

ili

TABLE OF CONTENTS - Continued

Page

A. Petitioner Failed to Address the Health and

Safety-Based Justification for the South Car-

Olina Beachfront Management Act in the

State Courts; He has Therefore Waived the

Ability to Dispute the Issue Before This

Ee Sea 6 kb ee ce seca sccesccce: 20

B. If the Court Believes There is an Inadequate

Record Regarding the Character of the

South Carolina Statute or Related Points, the

Proper Disposition is to Remand the Case to

the State Courts for Further Proceedings .. 22

Ill. IF THE COURT SHOULD FIND THE NUI-

SANCE EXCEPTION INAPPLICABLE TO THE

PRESENT CASE, THE PENN CENTRAL “BAL-

LANCING OF INTERESTS” TEST WOULD

es icc css cacccecececces 23

IV. PETITIONER’S PERMANENT TAKINGS CLAIM

IS MOOT TO THE EXTENT IT IS BASED ON

THE 1988 ACT AND UNRIPE TO THE EXTENT

IT IS BASED ON THE 1990 AMENDMENTS TO

THe SUUTH CAROLINA ACT................ 27

A. This Controversy Is Moot Because The 1990

Amendments to The Act Permitting Con-

struction on Petitioner’s Property Have

Eviscerated Petitioner’s Permanent Takings

Challenge to the 1988 Act ................ 27

B. Petitioner’s Permanent Takings Claim Does

Not Meet this Court’s Ripeness Criteria,

Which Require Petitioner to Seek a Final

Authoritative Decision, Including an Avail-

able Variance, Before Pursuing Relief Based

oe ae are. OUENEENUIOM .................. 28

EE 30

— iv

TABLE OF AUTHORITIES

CASES

Adolph v. Federal Emergency Management Agency of

the United States, 854 F.2d 732 (5th Cir. 1988) ..... 16

Agins v. City of Tiburon, 447 U.S. 225 (1980)

504 6NdbNSERO ERD RRUERRS CLEMENTE SE 24, 25, 26, 28, 29

Andrus v. Allard, 444 U.S. 31 SE ea weserssacvaene 25

Armstrong v. United States, 364 U.S. 40 (1960)......... 7

Atlantic Coast Line v. Goldsboro, 232 U.S. 548 (1914)..... 9

Bowen v. Gilliard, 483 U.S. 587 (1987)............. 15, 25

Burford v. Sun Oil Co., 319 U.S. 315 (1943) .......... 22

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

CET eT ee ee PE oe Po Fee re a Ge RS 7

Commonwealth v. Alger, 61 Mass. 53 (1851)........... 11

Connolly v. Pension Benefit Guaranty Corp., 475 U.S.

ee EN Peron er ee rere rer Tees 25

Consolidated Rock Products v. City of Los Angeles, 57

Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342, pee

GUOUMNGE, TEU Wak DO GUO hee cen cscs sPevcesees 12

oe eS, ee 8 Rr e rr: oe 27

Dinsmore v. Southern Express Co., 183 U.S. 115

SUNS ounSau Waa ssi nncces sent wade rte ere sa 27

Eno v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965) .... 12

Esposito v. South Carolina Coastal Council, 939 F.2d

165 (4th Cir. 1991), petition for cert. pending ....... 16

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). ..16, 18

TABLE OF AUTHORITIES - Continued

Page

First English Evangelical Lutheran Church of Glendale

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

‘SoS SEMOSUSEORAL MOU AERU EET Oe nc rare ee es 7, 8, 22, 29

Fisher v. City of Berkeley, 475 U.S. 260 (1986)......... 15

Fusari v. Steinberg, 419 U.S. 379 (1975)............... 28

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) .... 11

Globe Newspaper Co. v. Superior Court, 457 U.S. 596

SE hee bdnecekioue Wis skeen seen haaeee cukwee sie ~ ae

Godchaux Co. v. Estopinal, 251 U.S. 179, 181 (1919)... . 21

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)

tbe bh Wed KAO 04~ 0 bwSERE CREE Oe Cer eeetd cen) 11, 13, 16, 23

Gorieb v. Fox, 274 U.S. 603 (1927) ................... 10

Haas v. City and County of San Francisco, 605 F.2d

og OS ee eee erry eee 19

Hadacheck v. Sebastian, 239 U.S. 394 (1915)........ 10, 18

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

MEER PRE OE TE CEE Ey Oe PTY Pee en pene 15

Hodel v. Irving, 481 U.S. 704 (1987).................. 16

Hudson County Water Co. v. McCarter, 209 U.S. 349

PA 540 as eke sens dabcuteedwahasesexuawenseens 1, 11

International Paper Co. v. Ouellette, 479 U.S. 481

SOME A ains bo 555s 040409 $500 seen SO ace hud eee lennen 18

Kaiser Aetna v. United States, 444 U.S. 164 (1979)

coeCkeN edd dtu teem NEWE EUR Eses NO RK OR ebeeNeNE ES 8, 15, 25

Keystone Bituminous Coal Assn. v. DeBenedictis, 480

Pa SU SUPE 5 tabi cess cts eeeksecaruneibns passim

Lehman Brothers v. Schein, 416 U.S. 386 (197) Waa ayer 22

vi

TABLE OF AUTHORITIES —- Continued

Page

MacDonald, Sommer and Frates v. County of Yolo,

ee A MP MEER © 5-00.00 6055.4 0corecacessnacvans's 28

McNulty v. Town of Indialantic, 727 F.Supp. 604

, SING Sk Gn oh dd ndds se wdc kev eer eee deesers 16

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

ESE FLPMA or 5 oe PPO ee Ee Tee TEE 15

Milardo v. Coastal Resources Management Council of

Rhode Island, 434 A.2d 266 (R.I. 1981)............. 12

Miller v. Schoene, 276 U.S. 272 (1928)......... 10, 13, 18

Missouri v. Illinois, 200 U.S. 496 (1906) .............. 18

Mugler v. Kansas, 123 U.S. 623 (1887)............ passim

Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d

Se EE iis cis sccn ness caps aus heenda rites esse 12

Nollan v. California Coastal Commission, 483 U.S.

8, RR er pee rey te reer ee met 17, 25

Northwestern Fertilizing Co. v. Hyde Park, 97 US.

Nc ee le au rete CAO KES CES COSTS CEES 9

Northwestern Laundry v. Des Moines, 239 U.S. 486

PART EE ane tee te ie EE ee ee ree 16

Patterson v. Kentucky, 97 U.S. 501 (1878).............. 9

Penn Central Transportation Co. v. City of New York,

RS ee re mre reer rere passim

Pennell v. City of San Jose, 485 U.S. 1 (1988)......... 15

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

Hee PIS sat hh Oe ie = et Perea ear ge 7, 10, 13, 17, 24

vii

TABLE OF AUTHORITIES - Continued

Page

Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531

DR tue Pada na on bauer ee ehe eece ed alee ee earl Cleo 10

Potter v. City of Oceanside, 114 Cal.App.3d 564

NS settee hee crete eit tee ere e co} 4

Preseault v. Interstate Commerce Commission, 494

my RRR IR i Pr a ae re nye eae 11

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

Ruckleshaus v. Monsanto Co., 467 U.S. 986 (1984). .11, 25

San Diego Gas & Electric Co. v. City of San Diego,

Sy Se ia a ca sc als One wicde ae) Sones 28

Smith v. County of Los Angeles, 214 Cal.App.3d 266,

er sav cca viceseesns apeeiew es 4

Steffel v. Thompson, 415 U.S. 452 (1974).............. 27

Street v. New York, 394 U.S. 576 (1969) .............. 21

Stuyvescant v. Mayor of New York, 7 Cow. 588 (1827) .... 12

Tahoe Sierra Preservation Council, et al. v. Tahoe

Regional Planning Agency, et al, Case Nos. CIV-

R-84-257-ECR (D. Nev.), CIV-S-84-816-EJG (E.D.

8 neha ietice te ph Eee ilar ty LID iti eee es one 2

Turner v. County of Del Norte, 24 Cal.App.3d 311,

oe ree 16

United States v. Causby, 328 U.S. 256 (1946).......... 19

United States v. Munsingwear, 340 U.S. 36 (1950)..... 28

Welch v. Swasey, 214 US. 91 (1909)............... 10, 19

vill

TABLE OF AUTHORITIES - Continued

Page

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)................ 28

Yee v. City of Escondido, No. 90-1947................. 15

FEDERAL STATUTES

OG WBA. Ge BER eres POTBUED 00 wcrc ccc ccccnsans 4

CALIFORNIA STATUTES

Food & Agriculture Code

§§ 12641 et seq., 12961 et seq. (West 1991)........... 3

Public Resources Code

fe fF Te 8. PPPerrsTereri erie 2

ee, CSch caibihasvenskbeatnenes 2

Health & Safety Code

5 Fg ER ree rer ere eee er Tce see Tee eT TS 3

Ruies

Rules of the Supreme Court of the United States

IGA 6 £ kaise nig Sou cbH eA EN a 0nd ve 21

CN aonb cts Shaves ye 4ebd oeRae ee ne kbs XANES 1

OTHER AUTHORITIES

13 Wright, Miller & Cooper, Federal Practice and

Procedure § 3533 et seq. (2d ed. 1984).......... 27, 28

California Department of Finance, Population Estt-

mates for California Cities and Counties (1991) ..... a

ix

TABLE OF AUTHORITIES - Continued

California Department of Finance, Projected Total

Population of California Counties, 1990-2005

Ee ee PP eeE CLEC TELE CUTE CTT CPCS

California Seismic Safety Council, Loma Preita’s

oe ee eS SS eer ere

Fink, Public Land Acguisition for Environmental Pro-

tection: Structuring a Program for the Lake Tahoe

Basin 18 Ecology L. Q. 486, 503-504 (1991).....

Hagman and Misczynski, Windfalls for Wipeouts:

Land Value Capture and Compensation, (1978), pp.

Ne hig WENN 650% Cire iee40 05 580 BO ROLE 05006 «8

Note, The Origins and Original Significance of the

Just Compensation Clause of the Fifth Amendment,

em Fe 8 RP eee

Prosser, Law of Torts, (4th ed. 1971), § 57.........

Restatement (Second) of Torts §§ 364-371...........

Sax, Some Thoughts on the Decline of Private Prop-

oray Se Vena. G.. GGG CUVEE) ..................

Stern, Gressman & Shapiro, Supreme Court Practice

ee on. TUES) OF om. 160-151... .....5..........

Wright, Law of Federal Courts, (West 4th ed. 1983),

IR Rete ey, RC A es

Page

INTEREST OF AMICUS STATE OF CALIFORNIA

Amicus State of California respectfully files this brief

in support of respondent, pursuant to Rule 37.5 of the

Rules of the Supreme Court of the United States.

Eighty-four years ago, Justice Oliver Wendell Holmes

observed that the public interest in its natural resources is

“omnipresent wherever there is a State, and grows more

pressing as population grows.” (Hudson County Water Co.

v. McCarter, 209 U.S. 349, 356 (1908).)

That observation is especially compelling with refer-

ence to the State of California, its 58 counties and 467

cities. California seeks to accommodate an ever-burgeon-

ing population, and to provide its citizens with the con-

tinued health and safety protection which remain the core

function of the police power. California must also con-

serve the same natural resources which have made it a

magnet for settlement and development over the last

century and a half, and which are essential to serve the

very population those resources attract.

California’s population of over 30 million people — as

compared to approximately 20 million in 1970 —- is

expected to exceed 36 million residents by the end of the

century. (California Department of Finance, Population

estimates for California Cities and Counties (1991); California

Department of Finance, Projected Total Population of Calt-

fornia Counties, 1990-2005 (1991).) Yet it is an ineluctable

fact that the state’s natural resources remain finite. These

competing realities frame the key challenge for Califor-

nia’s leaders as they work to maintain both a healthy

economy and an adequate quality of life for California’s

citizens.

The issues presented by this case are of fundamental

importance to the State of California. A decision holding

that the statute at issue violates applicable constitutional

principles would greatly impair the ability of California

and its political subdivisions to carry out the most critical

and essential police power responsibilities. Adoption of

2

petitioner’s sweeping reformulation of takings jurispru-

dence — that the sole, relevant criterion is the economic

impact of a given regulation on private property — would

cripple California’s ability to carry out essential govern-

ment programs upon which her citizens’ health and

safety quite literally depend.

Several brief examples are illustrative. California’s

Coastal Act (the state’s analogue to the South Carolina

Act at issue here) requires that new coastal development

approved by state or local governments in California

“[mjinimize risks to life and property in areas of high

geologic, flood, and fire hazard.” (Cal. Pub. Resources

Code § 30253(1) (West 1991).) Under petitioner’s view of

the law, California could not prevent development in a

known earthslide area, absent compensation, notwith-

standing the potential for disaster for the public and

adjoining landowners.

Similarly, in 1971 a major earthquake occurred in

Southern California, causing the loss of 58 lives and

$1,646,000,000 in property damage. (California Seismic

Safety Council, Loma Prieta’s Call to Action (1991) at p. 11.)

In the wake of that natural disaster, California enacted

legislation which, inter alia, discourages development

atop known earthquake faults. (Cal. Public Resources

Code § 2621 et seq. (West 1991).) If petitioner’s position is

embraced by this Court, such limits on construction on

obviously hazardous sites could not be enforced absent

compensation to a landowner whose property overlies an

active earthquake fault.

The State of California is currently defending takings

claims in the Lake Tahoe Basin in which hundreds of

millions of_dollars are sought from two states and a

bistate planning agency.' That agency, created by the

' Tahoe Sierra Preservation Council, et al. v. Tahoe

Regional Planning Agency, et al., Case Nos. CIV-R-84-257-ECR

(D. Nev.), CIV-S-84-816-EJG (E.D. Cal.).

3

bistate Tahoe Regional Planning compact, limited devel-

opment of highly-erodible mountainside areas, based on

undisputed scientific evidence that such development

would trigger pollution that would significantly impair

the water quality of Lake Tahoe itself. (Fink, Public Land

Acquisition for Environmental Protection: Structuring a Pro-

gram for the Lake Tahoe Basin, 18 Ecology L. Q. 486, 503-504

(1991).) Despite the fact that Lake Tahoe is a publicly-

owned natural resource of worldwide renown (princi-

pally due to its exceptional water quality), plaintiffs in

the pending lawsuits — like petitioner herein — are effec-

tively claiming a constitutional right to wreak environ-

mental harm on the public unless government pays them

not to do so.

Toxic substance control is another context in which

petitioner's theory, if adopted, would have untoward

consequences. Under California law, state officials can

initiate procedures to have property declared as contami-

nated if hazardous waste is located on or immediately

adjacent to the property. That procedure requires notifica-

tion of affected landowners and a hearing. If successful,

the end result is to restrict future uses of the property and

to require the execution of restrictive covenants. (See Cal.

Health & Safety Code §§ 25220 et seq., 25359.5 (West

1991).) Reversal of the decision below could place the

State of California in the intolerable position of either

exposing its citizens to risk of exposure to toxic sub-

stances by allowing development of the site to proceed or,

alternatively, compelling state purchase of the contami-

nated property.

The implications of petitioner’s sweeping contentions

are not limited to land use regulation. For example, Cali-

fornia has a comprehensive system of food and pesticide

regulation designed to insure that the state’s agricultural

products are safe for the buying public nationwide which

consumes California fruits and vegetables. (See, e.g., Cal.

Food & Agriculture Code §§ 12641 et seq., 12961 et seq.

(West 1991).) The logical extension of petitioner’s argu-

ment is that this regulatory program - which forms a

4

cornerstone of California’s most important industry -

could no longer be enforced absent compensation to the

owner of the contaminated food or hazardous pesticide.

Such a result is neither rational nor, as discussed below,

consistent with existing law.?

STATEMENT OF THE CASE

Amicus State of California adopts respondent'’s state-

ment of the case.

SUMMARY OF ARGUMENT

1. For over a century, this Court has recognized that

in instances where government acts to abate a nuisance or

to prevent conduct tantamount to a nuisance, no uncon-

stitutional taking transpires even if the value of affected

2 Furthermore, longstanding principles of state law afford

Californians legal recourse in certain instances where state or

local officials have failed to provide adequately for their con-

stituents’ health and safety. (See, e.g., Smith v. County of Los

Angeles, 214 Cal.App.3d 266, 262 Cal.Rptr. 754 (1991) (uphold-

ing cause of action against county for earthslide damage

allegedly caused as result of county’s efforts to respond to

damage from prior natural disaster); Potter v. City of Oceanside,

114 Cal.App.3d 564, 170 Cal.Rptr. 753 (1981).)

Similarly, the dictates of federal law often compel state

health and safety-related responses which have the effect of

limiting private property rights. E.g., Federal Coastal Zone

Management Act, 16 U.S.C. §§ 1452(2)(B), 1458(a).

Demands on California’s already-strained fiscal resources

will be further exacerbated if those who are allowed to build in

harm’s way are thereafter free to seek financial recourse from

the government once disaster strikes. Adoption of petitioner's

extreme theory would hamstring the State of California’s abil-

ity reasonably to prevent health and safety hazards and to

comply with federal mandates, while leaving the state exposed

under state law to liability accruing from the inevitable law-

suits filed by California citizens against the government that

failed to protect them from those hazards.

5

private property is substantially diminished or eliminated.

This principle, which also has strong antecedents in vener-

able common law doctrine, makes possible the most funda-

mental role of government: protecting its citizens from

hazards to public health and safety. It also is predicated upon

the longstanding principle that one has no right - constitu-

tional or otherwise — to make use of his or her property in

such a way as to injure other property owners or the public.

It is equally settled, however, that the nuisance excep-

tion to the Takings Clause is not coextensive with the police

power. In determining whether a given regulation properly

falls within the nuisance exception to the Takings Ciause, the

proper judicial inquiry is whether a primary purpose of the

measure is to protect public health or safety. Moreover, the

government's health and safety objectives of such a program

must be objectively verifiable by a reviewing court for the

nuisance exception to apply.

2. The record below reveals that petitioner assiduously

avoided any challenge to the health and safety-based under-

pinnings of the South Carolina Beachfront Management Act.

Instead, petitioner focused his takings challenge exclusively

on one facet of that Act’s impact on his property: the extent

to which the Act diminished the economic value of his lots.

Only before this Court has petitioner altered his litigation

strategy and broadened his constitutional challenge. Here he

argues — for the first time — that the Act’s setback require-

ments fail because they are predicated on police power

objectives other than those found both extant and compelling

by the South Carolina Supreme Court.

Petitioner’s stratagem must fail for two reasons: first, he

has waived his right to challenge the justification for the

Act’s setback requirements and conceded the issue below.

Second, even if this Court were to relieve petitioner of that

concession, the proper disposition under established princi-

ples of federalism and comity is for the Court to remand the

case to the South Carolina courts for further proceedings on

that issue.

3. If the Court determines that the nuisance excep-

tion is for some reason inapplicable to the present case,

6

petitioner’s takings claim is properly resolved by refer-

ence to the multi-faceted standard articulated in Penn

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

(1978). Petitioner errs in contending that his takings claim

should be resolved solely by reference to the South Caro-

lina Act’s economic impact on his property. The character

of the governmental action and petitioner’s reasonable

investment-backed expectations are also essential factors

in the takings equation. Since those factors have not been

fully developed on the present record, the case should be

remanded to the lower courts if this Court finds the Penn

Central standard applicable here.

4. The procedural posture of this case deprives it of the

justiciability required for review by the Court. First, peti-

tioner’s claim of a permanent taking resulting from the 1988

Act is moot because subsequent amendments have substan-

tially altered the Act’s impact on petitioner’s property. Those

amendments plainly allow petitioner to submit a develop-

ment application for review. Second, any takings claim based

on the current law is not ripe, because petitioner has never

submitted such an application. Finally, petitioner may not

now raise potential issues concerning a “temporary taking”

because, pursuant to the parties’ stipulation below, that claim

has never been presented to the South Carolina courts.

ARGUMENT

I.

GOVERNMENT REGULATION DESIGNED TO PRE-

VENT OR LIMIT PRIVATE ACTIVITIES THAT

THREATEN PUBLIC HEALTH OR SAFETY DO NOT

CONSTITUTE COMPENSABLE TAKINGS, REGARD-

LESS OF THEIR ECONOMIC IMPACT ON AFFECTED

PROPERTY.

A. The “Nuisance Exception” to Takings Jurisprudence is

Both Longstanding and Well-Established.

The Takings Clause of the Fifth Amendment provides

that “private property [shall not] be taken for public use

7

without just compensation.” The Takings Clause has been

made applicable to state and local governments through

the due process conduit of the Fourteenth Amendment.

(Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241

(1897).)

Constitutional scholars have established that the

drafters of the Takings Clause “intended the clause to

have narrow legal consequences: It was to apply only to

the federal government and only to physical takings.”

(Note, The Origins and Original Significance of the Just

Compensation Clause of the Fifth Amendment, 94 Yale L.].

694, 708 (1985); Hagman and Misczynski, Windfalls for

Wipeouts: Land Value Capture and Compensation, (1978), pp.

256, 272.) Nevertheless, in Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) and related cases, this Court identified

the doctrine of “regulatory takings.” Speaking for the

Court in Pennsylvania Coal, Justice Holmes opined that

regulation which “goes too far” can result in a taking of

private property requiring compensation, notwithstand-

ing the fact that title to and use of the regulated property

remains with its private owner. (260 U.S. at 393; see also,

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 315-317 (1987).)

1. The Takings Clause and the case law which has

developed under it reflect the inevitable tension between

the right of the individual citizen to utilize private prop-

erty and the unquestioned need for government to exer-

cise its police power to protect the gener?! »ublic.

(Armstrong v. United States, 364 U.S. 40, 49 (19m).) Per-

haps in light of this ever-present conflict, the Court has

repeatedly professed itself unable to develop bright line

rules that will always provide clear guidance as to when

a regulatory taking transpires. (See, e.g., Penn Central

Transportation Co. v. City of New York, 438 U.S. 104, 124

(1978); Pennsylvania Coal, supra, 260 U.S. 393, 416 (“this is

a question of degree - and therefore cannot be disposed

of by general propositions”).) Particularly in close cases,

a balancing of interests and an “ad hoc factual inquiry”

are required under applicable constitutional principles.

—

8

(Penn Central, supra, 438 U.S. at 124; Kaiser Aetna v. United

States, 444 U.S. 164, 175 (1979).)

Nevertheless, this Court has consistently recognized

that in those instances where government acts to abate a

nuisance or to prevent private action “tantamount to

public nuisances,” no unconstitutional taking transpires

even if the value of affected private property is substan-

tially diminished or eliminated. (Keystone Bituminous Coal

Assn. v. DeBenedictis, 480 U.S. 470, 491-492 (1987).)?

In Keystone, decided a mere five years ago, the Court

reaffirmed over a century of jurisprudence, confirming

the special deference accorded police power measures

which eliminate or prevent tangible threats to the public’s

health and safety. Significantly, the dissent in Keystone did

not take issue with the proposition — reaffirmed and

applied by the majority — that certain health and safety-

related regulatory programs are valid under the Takings

Clause notwithstanding their economic impact: “[Wle

have recognized that a taking does not occur where the

government exercises its unquestioned authority to pre-

vent a property owner from using his property to injure

others without having to compensate the value of the

forbidden use.” (480 U.S. at 511 (Rehnquist, C.J., dissent-

ing); see also, First English, supra, 482 U.S. 304, 313

(remanding to state court issue of “whether the county

might avoid the conclusion that a compensable taking

had occurred by establishing that the denial of all use

was insulated as part of the State’s authority to enact

safety regulations.”).)

Keystone is no aberration. That case, rather, reflects

the Court’s longstanding adherence to a fundamental

principle of takings law: that the Fifth Amendment does

not confer on private parties a constitutional right to use

* The exception finds its source in the origins of nuisance

law, which is concerned with the prevention of harm to others.

This cannot reasonably be equated with “public use” of private

property for which compensation is required under the Tak-

ings Clause. See discussion, infra.

9

their property in such a way as to injure their neighbors

or the public. It has long been a part of this nation’s

jurisprudence that no one is entitled to use their property

sO as to cause harm to others:

“[The police power] rests upon the fundamental

niet i that every one shall so use his own

property] as not to wrong and injure another.

To regulate and abate nuisances is one of its

ordinary functions.” (Northwestern Fertilizing Co.

v. Hyde Park, 97 U.S. 659, 667 (1879).)

As this Court observed early in this century:

“Under such circumstances the State, in the

exercise of the police power, may legitimately

extend the application of the principle that

underlies the maxim sic utere tuo ut alienum non

loedas [use your own property in such manner as

not to injure that of another], so far as may be

requisite for protection of the public... [T]he

enforcement of uncompensated obedience to a

regulation established under this power for the

public health or safety is not an unconstitutional

taking of property without compensation... ”

(Atlantic Coast Line v. Goldsboro, 232 U.S. 548,

558-559 (1914).)

Most commentators (and, indeed, the Court itself)

cite the Supreme Court’s 1887 decision in Mugler v. Kan-

sas, 123 U.S. 623 (1887) as the first case to explicitly

recognize the “nuisance exception” to the Takings Clause.

(See Penn Central, supra, 438 U.S. at 144-145 (Rehnquist,

C.J., dissenting.4) In Mugler, the Court upheld against

constitutional challenge the state’s power to close a prof-

itable brewery. Justice Harlan, speaking for a unanimous

Court in Mugler on this point, observed:

“{A]ll property in this country is held under the

implied obligation that the owner’s use of it

4 But see Northwestern Fertilizing Co. v. Hyde Park, supra,

cited and relied upon in Mugler (123 U.S. at 666-667); see also,

Patterson v. Kentucky, 97 U.S. 501 (1878); and state court cases

cited infra.

10 ;

shall not be injurious to the community...” 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 an appropriation of prop-

erty for the public benefit.” (123 U.S. at 668-669.)

Over the following 100 years, the Court has applied the

nuisance exception to reject a variety of Takings Clause

challenges. In each case the Court found that the health and

safety-based objectives of the regulatory programs being

challenged insulated them from constitutional attack. (See,

e.g., Welch v. Swasey, 214 U.S. 91 (1909) (municipal height

limitation); Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531

(1914) (miner safety regulation); Reinman v. Little Rock, 237

U.S. 171 (1915) (urban ban on livery stables); Hadacheck v.

Sebastian, 239 U.S. 394 (1915) (dismissing takings challenge to

city ordinance which required closure of profitable brick-

yard, thereby reducing economic value of property by 92.5

per cent); Gorieb v. Fox, 274 U.S. 603 (1927) (municipal set-

back regulations); Miller v. Schoene, 276 U.S. 272 (1928) (find-

ing no taking where state had required landowner to cut

down infected trees in order to prevent disease’s spread to

other properties. “where the public interest is involved pre-

ferment of that interest over the property interest of the

individual, to the extent even of its destruction, is one of the

distinguishing characteristics of every exercise of the police

power which affects property.”).)

The contention — advanced by petitioner and others -

that the Court’s decision in Pennsylvania Coal somehow

overruled these precedents sub silentio is simply nonsen-

sical in light of the Court’s subsequent cases. For exam-

ple, Justice Holmes, who authored the Pennsylvania Coal

decision, also joined in the opinions in Gorieb and Schoene,

discussed above.* Even more compelling is the fact that

> That Justice Holmes did not view the Takings Clause as

an inflexible bar to all health and safety-based regulation is

(Continued on following page)

11

this Court has regularly reaffirmed and applied the nui-

sance exception in a number of modern Takings Clause

cases. (See Goldblatt v. Town of Hempstead, 369 U.S. 590,

594-596 (1962); Penn Central, supra, 438 U.S. 104, 125;

Keystone, supra.)

2. The nuisance exception to the Takings Clause

finds its antecedents in venerable common law doctrine.

The principles announced in Mugler, et al., are predicated

to a substantial degree on Anglo-American principles of

tort and property law. (See. e.g., Prosser, Law of Torts, (4th

ed. 1971), § 57; Restatement (Second) of Torts §§ 364-371.)

This is particularly relevant in light of the fact that prop-

erty rights are themselves fundamentally a creature of

state, rather than federal, law. (Ruckleshaus v. Monsanto

Co., 467 U.S. 986, 1001 (1984); Preseault v. Interstate Com-

merce Commission, 494 U.S. 1, 20 (1990) (O’Connor, J.,

concurring).)

3. Not surprisingly, the principle that no taking

exists when government acts to prevent threats to public

health and safety —- irrespective of economic impact on

private parties — is firmly embedded in state law prece-

dents as well. Many such state decisions, in fact, predate

and presage Mugler. In Commonwealth v. Alger, 61 Mass. 53

(1851), the Massachusetts court upheld an ordinance

which prohibited construction of wharves beyond a pre-

scribed harbor line, on the ground that such structures

(Continued from previous page)

underscored by a number of his other opinions. See, e.g.,

Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-238 (1907)

(“the state has an interest independent of and behind the titles

of its citizens, in all the earth and air within its domain.”);

Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (“It is a

fair and reasonable demand on the part of a sovereign that the

air Over its territory not be polluted .. . that the forests on its

mountains .. . shall not be further destroyed or threatened by

the acts of persons beyond its control, that the crops and

orchards on its hills should not be endangered from the same

source.”)

12

constituted a public nuisance. (See also, Stuyvesant v.

Mayor of New York, 7 Cow. 585 (1827) (upholding on

public health grounds ordinance banning burials in cer-

tain portions of New York City); People v. Hawley, 3 Mich.

330 (1854).)

Twentieth century state court precedents are sim-

ilarly in accord. For example, in Consolidated Rock products

v. City of Los Angeles, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370

P.2d 342, appeal dismissed, 371 U.S. 36 (1962), the Califor-

nia Supreme Court found that a rock and gravel quarry

within city limits was properly banned on public health

and pollution hazard grounds, notwithstanding the

absence of an alternative economic use. Also noteworthy

is Milardo v. Coastal Resources Management Council of Rhode

Island, 434 A.2d 266, 269-270 (R.I. 1981), in which the

Rhode Island Supreme Court rejected a developer’s chal-

lenge to an administrative denial of a sewer system per-

mit, where evidence showed the effect would be to

pollute an adjoining marsh:

“In essence, plaintiff is asserting a right not only

to use his property but also to discharge waste

into the surrounding area. This is a ‘property

right’ that this. court [has] refused to recog-

nize . . . We believe that this denial was an

exercise of the police power for protection of the

public health and safety.”

(See also, Nassr v. Commonwealth, 394 Mass. 767, 477

N.E.2d 987 (1985) (hazardous waste site); Eno v. Bur-

lington, 125 Vt. 8, 209 A.2d 499 (1965) (unsafe structure).)

4. Accordingly, it is far too late in the history of

takings law to assert - as petitioner unabashedly does -

that the nuisance exception to the Takings Clause is non-

existent. (Petitioner’s Brief at pp. 11-14.) As the Solicitor

General correctly observes:

“The roots of the [nuisance exception to the

Takings Clause] extend deep into the Court's

precedents and historical definitions of private

property rights, and into the correlative power

13

of the government to abate nuisances and pro-

tect public health and safety from serious

harm.” (Brief of Solicitor General at p. 15.)

This Court recently confirmed this very principle in

Keystone, supra. There the Court explicitly rejected the

identical argument advanced by petitioner in the present

case: that Pennsylvania Coal had somehow implicitly over-

ruled Mugler and its progeny. (480 U.S. 470, 490.) Citing

Mugler, the Court in Keystone held:

“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,’ . . . and the Takings Clause

did not transform that principle to one that

requires compensation whenever the State

asserts its power to enforce it.” (480 US. at

491-492. )®

In summary, longstanding Supreme Court jurispru-

dence confirms the nuisance exception to the Takings

Clause. Under that exception, the state is not required to

pay compensation to a private property owner if the

regulation at issue is imposed in order to prevent or

address a threat to public health or safety. And this is true

6 Perhaps aware of the frailty of his argument-in-chief,

petitioner makes the equally remarkable contention that

although the nuisance exception may in fact be applicable with

respect to facial takings challenges, it has no relevance to as

applied takings claims such as that he posits in the present

litigation. See Petitioner’s Brief at 16-19.

Fhe purported distinction is both spurious and lacking in

any precedential support. It makes no sense to argue that while

government may enact a law banning tainted food from the

marketplace, it cannot enforce the law without paying for the

contaminated food. Not surprisingly, petitioner cites no sup-

port for this startling proposition. To the contrary, many of the

cases in which the courts have invoked the nuisance exception

' involve as-applied takings claims. See, e.g., Goldblatt, supra;

Miller v. Schoene, supra.

14

even if the impact of the regulation is to substantially

diminish or eliminate the value of affected private prop-

erty. Accordingly, petitioner’s importunings to the Court

to ignore stare decisis and reverse over a century of settled

precedent in this area should be squarely rejected.

B. The Nuisance Exception is Properly Limited to

Those Police Power Measures Which Are Based in

Principal Part on Objectively-Verifiable Health and

Safety Concerns. ;

To conclude that the nuisance exception to the Tak-

ings Clause remains fully viable does not, however, end

the constitutional inquiry. It remains to be determined

whether a particular regulatory measure properly fits

within that limited exception to the Fifth Amendment's

compensation requirement.”

1. It is by now axiomatic that the nuisance excep-

tion is not co-extensive with the state’s police power.

(Keystone, supra, 480 U.S. at 491 n.20; Penn Central, supra,

438 U.S. at 145 (Rehnquist, J., dissenting).) Accordingly,

not all regulatory programs are of a nature which fall

within the nuisance exception.

The proper inquiry, we submit, is whether a primary

purpose of a particular government regulation is to pro-

tect public health or safety, and whether the regulation is

reasonably related to that purpose. The health and safety

risks to be addressed by such a program must be objec-

tively verifiable in order for the program to be encom-

passed within the nuisance exception.

Conversely, if the principal purpose of a government

regulation is to promote non-health and safety concerns -

’ As is explained infra, petitioner has effectively waived

his right to pursue this point before the Court. This is because

he conceded the compelling objectives of the South Carolina

Act in the trial court, opting instead to focus his takings

challenge exclusively on the economic impact to his property

of the Act. See discussion at pp. 20-22, infra.

15

such as economic or aesthetic interests - that regulation is

beyond the scope of the nuisance exception. Such a regu-

latory program — assuming it does not effect a physical

occupation of private property (cf. Kaiser Aetna v. United

States, supra, 444 U.S. 164, 180) - is instead properly

analyzed under the multifaceted criteria identified in

Penn Central, supra, 438 U.S. at 124.8

This distinction becomes more apparent by compar-

ing certain examples. For example, a state statute which

prohibits the manufacture of hazardous weapons mate-

rials adjacent to schools would come within the nuisance

exception. Similarly, a regulation authorizing government

seizure and destruction of seriously-diseased livestock

passes constitutional muster under Keystone and related

precedents. Government certainly has the ability, consis-

tent with constitutional rights of private property, to ban

activities which so directly threaten the public welfare.

Properly protective or preventative measures can be

contrasted against those government programs which

have as their objective the redistribution of economic

resources, the conferring of public benefits, or promotion

of aesthetic concerns. Examples of such regulatory pro-

grams which this Court has recently reviewed include

rent control (Pennell v. City of San Jose, 485 U.S. 1 (1988);

Fisher v. City of Berkeley, 475 U.S. 260 (1986); Yee v. City of

Escondido, No. 90-1947); certain redistributions of eco-

nomic wealth (Bowen v. Gilliard, 483 U.S. 587 (1987) (wel-

fare benefits); Hawaii Housing Authority v. Midkiff, 467 U.S.

229 (1984) (land reform)); and billboard control (Metro-

media, Inc. v. City of San Diego, 453 U.S. 490 (1981)). It is

beyond reasonable dispute that each such program falls

within the constitutional scope of the police power, and

this Court has so held. However, we do not believe that

any of these public purposes can reasonably be equated

with the nuisance exception embraced in Mugler, Key-

stone, et al. Rather, in reviewing each such non-health

® See discussion at pp. 23-26, infra

16

and safety-related measure, takings jurisprudence

requires application of the several factors identified in

Penn Central: not only the character of the governmental

action, but also the economic impact of the regulation and

the extent to which the regulation has interfered with the

owner’s reasonable investment-backed expectations. (438

U.S. at 124.) In such a situation, an admittedly valid

exercise of the police power may nevertheless result in a

taking; consequently, compensation could be required on

the facts of a given case. (See, e.g., Hodel v. Irving, 481 U.S.

704 (1987).)

The nuisance exception, on the other hand, encom-

passes a far narrower universe of government purposes

and programs. Health and safety concerns to which that

exception is applicable under the Mugler/Keystone stan-

dard include: prevention of water pollution (Goldblatt);

dangerous subsidence (Keystone); air pollution (North-

western Laundry v. Des Moines, 239 U.S. 486 (1916); flood-

plain zoning (Adolph v. Federal Emergency Management

Agency of the United States, 854 F.2d 732 (5th Cir. 1988);

Turner v. County of Del Norte, 24 Cal.App.3d 311, 101

Cal.Rptr. 93 (1972)); and erosion control (Esposito v. South

Carolina Coastal Council, 939 F.2d 165 (4th Cir. 1991), peti-

tion for cert. pending; McNulty v. Town of Indialantic, 727

F.Supp. 604 (M.D.Fla. 1989)).

2. Of course, there will be instances in which the

judiciary is confronted with takings challenges to regula-

tory programs whose objectives are unclear, multifaceted

or both. We believe several principles are useful in exam-

ining such a case.

First, the courts should look to the objectives cited by

the legislative body responsible for promulgating the pro-

gram under review. These objectives are to be gleaned

from the legislative history or, preferably, from the legis-

lative findings adopted as part of the measure itself.

Second, substantial deference must be given to those

legislative findings and judgments, under settled separa-

tion of powers principles. That such deference is required

in takings cases is well-established. (Euclid v. Ambler

17

Realty Co., 272 U.S. 365, 388-389 (1926); Keystone, supra,

480 U.S. 470, 511 n.3 (Rehnquist, C.J., dissenting).) Nev-

ertheless, judicial deference is not without limits, and the

question of whether a measure reasonably relates to a

legitimate health and safety objective ultimately rests

with the judiciary, not the legislature. (See, e.g., Keystone,

supra, 480 U.S. 470, 487 n.16: “Pennsylvania Coal instructs

courts to examine the operative provisions of a statute,

not just its stated purpose.”) This Court has recently

indicated that the judiciary is obliged to examine closely

the fit between the challenged regulation and the claimed

state objective. (Nollan v. California Coastal Commission,

483 U.S. 825, 834 (1987); see also, Penn Central, 438 U.S.

104, 127.) Such a “hard look” is similarly appropriate in

reviewing government's claim that a given regulation is

predicated upon objectively-verifiable health and safety

concerns.

Third, there will be instances, like the present case, in

which a regulation is justified on both health and safety

concerns and unrelated, albeit legitimate, purposes. In

such instances, we believe the proper course is first to

undertake the above analysis of the existence and legit-

imacy of health and safety objectives. For if a regulation

does advance documented, legitimate health and safety-

based concerns, the Mugler/Keystone standard is satisfied.

This is true even if aesthetic, economic or similar objec-

tives are simultaneously furthered by the measure. Stated

another way, the mere fact that a regulation serves collat-

eral as well as core public purposes should not diminish

the standing of such a regulation for purposes of judicial

review under the Takings Clause.’

* For example, the principal purpose of a land use ordi-

nance preventing development on steep mountainsides with a

history of earthslides is to prevent damage to the community

below the mountain. Such a measure should qualify under the

nuisance exception to the Takings Clause, despite the fact that

it arguably may also foster the aesthetic and open space objec-

tives of the community.

18

Fourth, the question of whether a given activity is

akin to a nuisance for purposes of the Mugler/Keystone

exception cannot be viewed in the abstract. As Justice

Brennan observed for the Court in Penn Central, this is

part of the “ad hoc, factual inquiry” essential in takings

cases. (438 U.S. at 124.) Moreover, what qualifies as a

nuisance-type activity often depends on where that activ-

ity is situated. As Justice Sutherland observed in Euclid v.

Ambler Realty Co., supra, 272 U.S. 365, 368, “a nuisance

may be merely a right thing in the wrong place, like a pig

in a parlor instead of the barnyard.” Accordingly, prohib-

iting a chemical plant in a residential neighborhood may

well fall within the scope of the nuisance exception, while

excluding such an operation from an industrial area

might not. Similarly, a ban on residential home construc-

tion in an earthquake or erosion-prone area would fit

within the Mugler/Keystone standard, whereas residential

development in non-hazardous areas would not.

Finally, it is well-established that although the nui-

sance exception derives from the common law, the appli-

cability of the exception need not be determined Strictly

according to common law standards. Historically, prop-

erty may have been used in ways which scientific discov-

eries or technological advances now clearly demonstrate

are harmful to the public. (Asbestos in construction activ-

ities is one prominent example.) This Court has recog-

nized this venerable principle on several occasions. (See,

e.g., Missouri v. Illinois, 200 U.S. 496, 522 (1906), super-

ceded by statute as stated in International Paper Co. v.

Ouellette, 479 U.S. 481 (1987); Hadacheck v. Sebastian, 239

U.S. 394, 410 (1915); Miller v. Schoene, supra, 276 U.S. 272,

280.) The principle is rooted in the necessary flexibility of

the police power:

“A vested interest cannot be asserted against

[the police power] because of conditions once

obtaining .. . To so hold would preclude devel-

opment and fix a city forever in its primitive

conditions.” (Hadacheck, supra, 293 US. at 410.)

19

Justice Black made a similar observation in the context of

a takings challenge:

“(T]he solution of the problems precipitated by

these technological advances and new ways of

living cannot come about through the applica-

tion of rigid constitutional restraints formulated

and enforced by the courts.” (United States v.

Causby, 328 U.S. 256, 274 (1946) (Black, J., dis-

senting.).)

This does not mean, of course, that the nuisance

exception to the Takings Clause will necessarily expand

in scope as scientific advances demonstrate new threats

to public health and safety. While modern technology will

doubtless continue to reveal such dangers from previ-

ously-undetected sources, it is equally true that the pas-

sage of time and those same technological advances serve

to eliminate other types of once-feared public health and

safety concerns. For example, modern zoning and open

space ordinances - perhaps the most common form of

aesthetic-based regulation, which would for the most part

seem to be beyond the scope of the nuisance exception -

find their historical roots in measures designed to fore-

stall far more tangible threats such as “fire, panic, and

other dangers . . . ” (Sax, Some Thoughts on the Decline of

Private Property, 58 Wash. L.R. 481, 490-491 (1983).) While

municipal height limitations are now generally predi-

cated primarily on aesthetic grounds (Haas v. City and

County of San Francisco, 605 F.2d 1117 (9th Cir. 1979)), this

Court upheld them early in this century on the then-

compelling ground that excessively-tall buildings in an

urban setting constituted a special fire hazard. (Welch v.

Swasey, 214 U.S. 91, 107-108 (1909).)

3. Accordingly, the nature of societal problems that

give rise to the nuisance exception will continue to

evolve; this evolution is intrinsic to the necessary elastic-

ity of the police power itself. However, the nuisance

exception and the police power are not and never have

been coterminous. Not every exercise of the latter falls

within the nuisance exception. The ultimate question in

20

each case is whether an underlying, primary purpose of a

particular regulatory program is to prevent uses of prop-

erty that are harmful to the public health and safety.

THIS COURT SHOULD NOT BE REQUIRED TO

DETERMINE WHETHER APPLICATION OF THE

SOUTH CAROLINA STATUTE TO PETITIONER’S

PROPERTY QUALIFIES UNDER THE NUISANCE

EXCEPTION; IF DEFERENCE TO THE STATE

COURT’S FINDING CANNOT BE MADE, THE

PROPER DISPOSITION IS TO REMAND FOR FUR-

THER PROCEEDINGS.

A. Petitioner Failed to Address the Heath and Safety-

Based Justification for the South Carolina Beach-

front Management Act in the State Courts; He Has

Therefore W.ived the Ability to Dispute the Issue

Before This Court.

Both at trial and on appeal to the South Carolina

Supreme Court, petitioner embarked upon a single-

minded litigation strategy: he argued the unconstitu-

tionality of the Beachfront Management Act, as applied to

his property, based exclusively on the adverse economic

impact of the Act upon that property. (Tr. 19-80, 94; Resp.

Br. S.C. Sup. Ct. at p. 2.) Petitioner assiduously avoided

raising any issue concerning the character of the govern-

mental action or the extent to which they interfered with

petitioner’s reasonable investment-backed expectations.

Indeed, he repeatedly conceded the validity of the pubiic

purposes relied upon by the South Carolina Legislature in

enacting the statute and by respondent in enforcing it.

(Ibid.)

Having embarked upon such an extreme and unprec-

edented theory, petitioner cannot now be heard to com-

plain that the South Carolina Supreme Court misread the

goals and objectives of the Act. Petitioner has conceded

that respondent was acting, within its police power, to

prevent actions akin to a public nuisance. This is the

position respondent adopted below, and it was properly

21

accepted by the South Carolina Supreme Court. (404

S.E.2d 895, 898.) It is therefore especially unseemly for

petitioner to fault the South Carolina Supreme Court for

the latter’s finding that the Act’s setback requirement

falls within the nuisance exception to the Takings Clause.

(E.g., Petitioner’s Brief at pp. 35, 44.) Having failed below

to rebut or even address respondent's argument to the

contrary,'° petitioner cannot legitimately shift his litiga-

tion strategy at this juncture and fault the lower court for

reaching a conclusion which petitioner steadfastly

refused to address.

Nor is petitioner accurate in accusing the lower court

of having “converted a complex [takings] inquiry into a

bright-line test.” (Jd. at p. 9.) That is in fact precisely what

petitioner sought to do — albeit unsuccessfully — in argu-

ing below the radical and unsupported view that a regu-

lation’s economic impact on property is the sole

appropriate criterion in a takings claim.

This Court has repeatedly admonished that when

“the highest state court has failed to pass upon a federal

question, it will be assumed that the omission was due to

want of proper presentation in the state courts, unless the

aggrieved party in this Court can affirmatively show the

contrary.” (Street v. New York, 394 U.S. 576, 582 (1969):

Supreme Court Rule 21.1(h).) It is essential that a federal

question be raised, presented and pursued in a timely

and proper manner at the appropriate stage of the state

court proceedings if it is to be preserved for Supreme

Court review. (Godchaux Co. v. Estopinal, 251 U.S. 179, 181

(1919); see also Stern, Gressman & Shapiro, Supreme Court

Practice (6th ed. 1986) at pp. 149-151.)

This case demonstrates the wisdom of that rule. Peti-

tioner utterly failed to challenge the nuisance-type under-

pinnings of the Act’s setback requirements in the state

'© Indeed, petitioner objected on relevancy grounds when

respondent’s counsel attempted to introduce evidence at trial

as to the public purposes underlying the Act’s setback require-

ments. See Tr. 94-97.

22

courts. He is therefore barred from doing so at this juncture,

and the decision below should be affirmed on that basis.

B. If the Court Believes There is an Inadequate Record

Regarding the Character of the South Carolina Statute

or Related Points, the Proper Disposition is to Remand

the Case to the State Courts for Further Proceedings.

If this Court nonetheless believes that the South Car-

olina Supreme Court’s examination of the 1988 Act was

somehow deficient, the proper disposition is to remand

the case to the South Carolina Supreme Court for further

proceedings.'’ Such a remand would permit the state

court to determine in the first instance whether the nui-

sance exception applies in the present case. 12

This result is fully consonant with traditional princi-

ples of federalism. The Court has regularly observed that

State courts should appropriately construe and examine

state legislation and regulation in the first instance. (E.g.,

Burford v. Sun Oil Co., 319 U.S. 315 (1943); Lehman Brothers

v. Schein, 416 U.S. 386, 390-391 (1974).)

A remand is also consistent with the Court's oft-cited

concern for judicial economy and efficiency. Specifically,

lower courts should determine factual issues. This is not

an activity which the appellate courts - and especially

this Court — have the time and ability to perform. (See,

e.g., First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, supra, 482 U.S. 307, 313-314, in

which the Court remanded the case to the state courts for

'' To the extent further development of the factual record

is deemed to be required, the South Carolina Supreme Court

could in turn remand the case to the trial court for additional

evidentiary proceedings.

'2 A remand would also seem appropriate in order to

permit a review of the extent to which the 1990 amendments to

the Act affect petitioner’s takings claim. See discussion at pp.

27-30, infra.

23

a determination as to whether the ordinance at issue was

justified under the nuisance exception to the Takings

Clause; see generally, Wright, Law of Federal Courts (West

4th ed. 1983), § 96.)

It would be singularly inappropriate for this Court to

examine the extent to which the Act does or does not fall

within the Mugler/Keystone nuisance exception in the first

instance, before the South Carolina courts have had an

opportunity to review their own statute for that purpose.

Accordingly, if this Court believes the issue of the Act’s

efficacy has properly been raised and preserved, the case

should be remanded for further state court proceedings

on that issue.

III.

IF THE COURT SHOULD FIND THE NUISANCE

EXCEPTION INAPPLICABLE TO THE PRESENT

CASE, THE PENN CENTRAL “BALANCING OF

INTERESTS” TEST WOULD APPLY

1. This Court has long and consistently held that the

question of whether government is required to pay com-

pensation for restrictions imposed on private property

must be resolved by a case-by-case balancing of public

and private interests. See, e.g., Goldblatt v. Town of Hemp-

stead, 369 U.S. 590, 595 (1962). In the case of preventing or

abating nuisances, the state interests are, as explained

above, necessarily superior to those of the property

owner. In other cases, the public needs and interests

served by the restrictions must be balanced against the

burdens imposed on the property owner as defined by

his or her reasonable investment-backed expectations and

the economic impact caused by the regulation.

Petitioner argues, however, for a more simplistic test.

He contends the government must reimburse a property

owner for any diminution in the property’s value due to

24

regulation, regardless of the interests served and regard-

less of the owner’s reasonable investment-backed expec-

tations. Such a rule would quite literally destroy the

ability of government to govern effectively. As the Court

noted in Pennsylvania Coal, supra, 260 US. at 413:

“[G]overnment hardly could go on if, to some

extent, values incident to property could not be

diminished without paying for every such

change in the general law. As long recognized,

some values are enjoyed under an implied lim-

itation and must yield to the police power.”

This Court, over many years, has fashioned a workable

and practical test by which property owners, legislators

and the public can predict, and the judiciary can decide,

whether government legislation has imposed such a

severe restriction on the use of property that the people

must pay. The Court should not accept petitioner’s

request that it destroy that craftsmanship.

The classic statement of the balancing test is found in

Penn Central Transportation Company v. City of New York,

supra:

“(W]e have frequently observed that whether a

particular restriction will be rendered invalid by

the government's failure to pay for any losses

proximately caused by it depends largely ‘upon

the particular circumstances [in that] case.’ .. .

In engaging in these essentially ad hoc, fac-

tual inquiries, the Court's decisions have identi-

fied several factors that have particular

significance. The economic impact of the regula-

tion on the claimant and particularly, the extent

to which the regulation has interfered with dis-

tinct investment-backed expectations are, of

course, relevant considerations. . . . So, too, is

the character of the governmental action.”

Id. at 124 (citations omitted).

The Court has alternately stated the applicable stan-

dard in Agins v. City of Tiburon, supra, 447 U.S. at 260 as

whether the regulation “does not substantially advance

25

legitimate state interests [citation] or denies an owner

economically viable use of his land... “13

Many other cases decided by this Court have applied

this basic test to takings claims. See, e.g., Andrus v. Allard,

444 U.S. 51, 65 (1979); Kaiser Aetna v. United States, 444

U.S. 164 at 175 (1979); Nollan v. California Coastal Commis-

sion, supra; Connolly v. Pension Benefit Guaranty Corp.,

supra, 475 U.S. 211, 224; Ruckelshaus v. Monsanto Co.,

supra.)

2. The need to preserve to the courts the ability to

weigh the full facts is essential to.the legitimate land use

planning objectives of state and local governments. Con-

current with an evaluation of the economic impacts of a

regulation on a particular piece of property, courts must

have the ability to review the facts compelling enactment

of the regulation, along with the realistic expectations of |

the property owner who has alleged an unconstitutional

deprivation. Without these components of the Penn Cen-

tral and Agins formula, “justice and fairness” could never

properly be served; the balance would always tilt in the

direction of the property owner, no matter how aitenu-

ated his hopes of using the land or how compelling the

State interest.

'* The Court in decisions subsequent to Penn Central and

Agins has occasionally cited one formulation of the multifaced

test or another. Cf. Bowen v. Gilliard, supra, 483 U.S. 587, 606

(1987) and Connolly v. Pension Benefit Guaranty Corp., 475 U.S.

211, 224-225 (1986) (citing Penn Central formulation of stan-

dard) with Nollan, supra, 483 U.S. at 834 (citing Agins). In any

event, we believe these statements effectively require the same

balancing of public and private interests. Indeed, the Court

itself has so construed the operative Penn Central and Agins

language. See Keystone, supra, 480 U.S. at 470. Under the Penn

Central/Agins test, in the event a regulatory measure deprives

the property owner of substantially all economic use, it is

likely that a compensable taking will be found to have tran-

spired unless consideration of the other applicable criteria

strongly compe! a contrary result.

26

For example, development of arid land, unsuitable

for agriculture and far from existing cities, requiring mas-

Sive public sector investment to provide basic urban ser-

vices, could not under petitioner’s theory be subjected to

even the most traditional restrictions on density, height,

and so forth. This is because compliance with such

restrictions would preclude profitable development,

given the tremendous infrastructure costs. Measurement

purely of the economic impacts would thus prevent regu-

lation of lands most ill-suited for development. It could

also in effect make government the guarantor of an inves-

tor’s profits, since any diminution in value resulting from

governmental action would necessarily require reimbur-

sement by the state. This in turn could encourage improv-

ident speculation by investors comfortable in the

knowledge that, no matter how likely their property

would ve subject to reasonable government restrictions,

the government will nevertheless have to pay for those

restrictions.

There is thus no basis in the law, and no support in

logic or reason, for petitioner’s suggestion that this Court

adopt a test for determining when a taking has occurred

that measures the economic impact of a government regu-

lation on a property owner to the exclusion of the other

components of the Penn Central/Agins test.

Since the facts necessary to apply the Penn Central/

Agins test have not been developed on the present record,

the Court should follow the suggestion of the Solicitor

General and remand this proceeding to the South Caro-

lina courts for further development of the evidence, if the

Court determines that the nuisance exception does not

apply for any reason. (See discussion in part II, supra.)

>

27

IV.

PETITIONER’S PERMANENT TAKINGS CLAIM IS

MOOT TO THE EXTENT IT IS BASED ON THE 1988

ACT AND UNRIPE TO THE EXTENT IT IS BASED ON

THE 1999 AMENDMENTS TO THE SOUTH CARO-

LINA ACT.

The procedural posture of this case deprives it of the

justiciability required for review by this Court, both

under established principles of mootness and ripeness.

A. This Controversy Is Moot Because The 1990

Amendments to The Act Permitting Construction

on Petitioner’s Property Have Eviscerated Peti-

tioner’s Permanent Takings Challenge to the 1988

Act.

Mootness principles incorporate Article III's “case

and controversy” requirement, as well as precepts of

judicial restraint and economy. (Globe Newspaper Co. v.

Superior Court, 457 U.S. 596, 602 (1982); see generally,

Wright, Miller & Cooper, 13 Federal Practice and Procedure,

§ 3533 et seq. (2d ed. 1984).) An actual controversy must

be extant at all stages of judicial review, not merely at the

time the complaint is filed. Steffel v. Thompson, 415 U.S.

452, 459 n.10 (1974). Courts must apply the law existing at

the time the case reaches them, and take appropriate

action when amendment of the statute or regulation ren-

ders the relief sought unnecessary or inappropriate. (Cort

v. Ash, 422 U.S. 66, 74-76 (1975); Dinsmore v. Southern

Express Co. 183 U.S. 115 (1901); Wright, Miller & Cooper,

supra, § 3533.6.)

In 1990, during the pendency of petitioner's appeal

to the South Carolina Supreme Court, the state legislature

amended the 1988 Act to permit construction of habitable

structures on beachfront lands, including the lots owned

by petitioner. These amendments were designed to

address the impacts that the setback rule would have on

coastal property owners such as petitioner; he is now

entitled to apply for a permit to build on his property

28

Any permanent grievance that petitioner may validly

have had because of the effects of the 1988 Act evapo-

rated when South Carolina modified the Act. Property

Owners such as petitioner currently have an opportunity

to pursue development of their land. Accordingly, peti-

tioner can no longer maintain that the 1988 Act perma-

nently deprived him of any chance to develop his land.

(See Fusari v. Steinberg, 419 U.S. 379 (1975); United States v.

Munsingwear, 340 U.S. 36 (1950).)

B. Petitioner’s Permanent Takings Claim Does Not

Meet this Court’s Ripeness Criteria, Which Require

Petitioner to Seek a Final Authoritative Decision,

Including an Available Variance, Before Pursuing

Relief Based on the U.S. Constitution.

Ripeness is a key jurisprudential threshold require-

ment which can and must be considered at the appellate

level as well as in the trial court. (Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172, 186-189 (1985); MacDonald, Sommer and

Frates v. County of Yolo, 477 U.S. 340 (1986), Wright, Miller

& Cooper, supra, at § 3532.3.) This Court has repeatedly

noted the special importance in land use cases of first

deciding whether the plaintiff has taken the necessary

steps so that the Court knows what is and is not allowed

to be done with the subject parcel. (/bid.)

The Court has consistently held that a constitutional

challenge to a land use regulation is not ripe where the

property owner has failed to apply for a variance or to

seek a determination of whether a permit would be

issued by the regulating agency. (See Agins v. City of

Tiburon, supra, 447 U.S. at 260 (1980); San Diego Gas &

Electric Co. v. City of San Diego, 450 U.S. 621, 633 (1981):

MacDonald, supra, 477 US. at 348-351 (1986).) This is not

an arbitrary rule. As the Court has noted: “Our reluctance

to examine takings claims until such a final decision has

been made is compelled by the very nature of the inquiry

required by the Just Compensation Clause.” (Williamson

29_

County Regional Planning Commission v. Hamilton Bank, 473

U.S. 172, 190 (1985).)

In the instant case, petitioner’s permanent takings

claim is not ripe because he has not sought relief under

the provisions of the 1990 amendments, which provide a

permit process that may well allow construction on his

property. Section 48-39-290 of the Act, as amended in

1990, and Section R.30-15(F) of respondent’s implement-

ing regulations clearly give petitioner the right to seek a

special permit allowing the very type of development on

his land that he says he contemplated. Accordingly, the

1990 amendments provide petitioner a clear administra-

tive avenue of relief. Yet petitioner has not pursued this

option and, indeed, has filed no application whatsoever.

Respondent has thus never been given the opportunity to

determine under the 1990 statute whether and how resi-

dential development of the type contemplated by peti-

tioner is consistent with state law. Thus it is premature to

determine whether and how the Act has worked a perma-

nent taking of his property requiring compensation. !4

'4 Petitioner advances the theory that he has at least suf-

fered a “temporary taking” for which compensation is

required. From this he contends that the case remains ripe for

adjudication on the merits. (Petitioner’s Brief on the Merits at

pp. 27-28, n.5.) This ignores that fact that the South Carolina

courts have never had an Opportunity to deal with the discrete

temporary takings issue because the parties stipulated in the

trial court that respondent reserved the right to argue and

contest any such challenge petitioner might later choose to

advance. (Tr. 14, Stipulation 14.) Under these circumstances,

petitioner should be required to litigate any such temporary

takings claim in the first instance in the state courts. This

would allow those tribunals to engage in the essentially fact-

based inquiry as to whether a temporary taking has transpired

under the facts and criteria identified in First English, supra,

482 U.S. at 322, Agins v. City of Tiburon, supra, 447 U.S. 255, 263,

and related cases.

| )

30

CONCLUSION

The decision of the South Carolina Supreme Court

should therefore be affirmed, the petition should be dis-

missed as improvidently granted or, alternatively, the

Court should remand this matter to the lower court for

further proceedings.

Dated: January 30, 1992

Respectfully submitted,

Danie. E. LUNGREN

Attorney General

Roperick E. WALSTON

Chief Assistant Attorney General

JAN S. STEVENs

Assistant Attorney General

"RICHARD M. Frank

Craic C. THompson

Supervising Deputy Attorneys

General

Maria Dante Brown

VirRNA L. SANTOos

Deputy Attorneys General

("Counsel of Record)

Counsel for Amicus Curiae

State of California