# 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A30. Public record. Not legal advice.