Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

Supreme Court, U.S

FiLED

2

No. FEB 3 1892

OFFICE GF «HE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Davip H. Lucas,

“: Petitioner,

SouTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of South Carolina

BRIEF AMICUS CURIAE OF THE

NATIONAL TRUST FOR HISTORIC PRESERVATION -

IN THE UNITED STATES

IN SUPPORT OF RESPONDENT

JEROLD S. KAYDEN LLOYD N. CUTLER

66 Dana Street LouIs R. COHEN

Cambridge, MA 02138 Counsel of Record

(617) 661-3016 DAVID R. JOHNSON

Of Counsel: JAMES R. WRATHALL

PETER B. Hutt II

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

DAVID A. DOHENY

PAUL W. EDMONDSON

ELIZABETH S. MERRITT

in ne Washington, D.C. 20087

IN THE UNITED STATES (202) 663-6000

1785 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 6738-40385

February 3, 1992 Counsel for Amicus Curiae

"BEST AVAILABLE COPYP

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ..................0.0.0.........

STATEMENT ......... ha leniaaisid aaaiaaiendpeceibsabeiiianedahmensiiaiicanats

SUMMARY OF ARGUMENT ....................02...0...............

ARGUMENT ......... ee acne

[.

Il.

Ill.

A REGULATION BARRING USES OF PROP-

ERTY THAT THREATEN SERIOUS HARM

TO OTHERS DOES NOT EFFECT A TAK-

ING, EVEN IF THE PROHIBITED USES ARE

THE ONLY ECONOMICALLY VIABLE USES

OF THE PROPERTY .... sce Sieiberenpadeunevediansecgenie

A. This Court Has Long Recognized That a

State May Prohibit Uses of Property That

Threaten Serious Harm to Others Without

en eee

B. The Principle That a State May Bar Uses

of Property That Threaten Serious Harm

Remains Applicable Even if the Barred Uses

Are the Only re Viable Uses of

the Property .. Z

THE SOUTH CAROLINA SUPREME COURT

PROPERLY ACCEPTED THE FINDING OF

THE SOUTH CAROLINA LEGISLATURE

THAT BUILDING ADDITIONAL STRUC-

TURES ON COASTAL PROPERTY THREAT-

ENED SERIOUS HARM .........0000000000 000...

AN OTHERWISE PROPER REGULATION,

NOT INVOLVING A PERMANENT PHYSI-

CAL OCCUPATION, CANNOT EFFECT A

TAKING UNLESS IT DENIES ALL ECO-

NOMICALLY VIABLE USE OF PROPERTY.

RESTA Le PO SO setenaeaantilinsesdene

14

17

22

25

il

rad

TABLE OF AUTHORITIES

CASES: Page

Agins v. City of Tiburon, 447 U.S. 255 (1980)... +s 2, 23

Andrus v. Allard, 444 U.S. 51 (1979) 23

Armstrong v. United States, 364 U.S. 40 (1960) 23

Beach v. Sterling Iron & Zine Co., 33 Atl. 286

(1895), aff'd, 41 Atl. 1117 (NJ. 1896) ll

Block v. Hirsh, 256 U.S. 135 (1921) - 13

Board of Regents v. Roth, 408 U.S. 564 (1972) _. 14

Bowditch v. Boston, 101 U.S. 16 (1879) 15

City of Milwaukee v. Illinois, 451 U.S. 304 (1981). ll

Eno v. Burlington, 209 A.2d 499 (Vt. 1965) . 10

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) . 2

Goldblatt v. Hempstead, 369 U.S. 590 (1962)... 9,11

Hadacheck v. Sebastian, 229 U.S. 394 (1915)... ss: 9, 12

Hodel v. Irving, 481 U.S. 704 (1987) 0 22

Keystone Bituminous Coal Association v. DeBene-

dictis, 480 U.S. 470 (1987) 0. wocennveaieanal passim

Lucas v. South Carolina Coastal Council, 404

S.E.2d 895 (S.C. 1991) eds 10

MacDonald, Sommer & Frates v. County of Yolo,

ele SS OO). | ee 2

MacLeod v. Takoma Park, 263. A2d 581 (Ma.

een 10

Miller v. Schoene, 276 U.S. 272 (1928) —.... oe |

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

Nassr v. Commonwealth, 477 N.E.2d 987 (Mass.

| | ESN eS ey 10

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

| | MELEE ENNECA SD 23

Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978) _.... nessteilinnasegaa eee passim

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922) . ooeetasteanianussiebeeseneiiensansaneeianinnn passim

Powell v. Pennsylvania, 127 U.S. 678 (1988)... 15

Preseault v. Interstate Commerce Commission,

aS SE) Pee 2

Reinman v. City of Little Rock, 237 U.S. 171

es PO ae <= ccunatonussliosgnnaigalaas nina = »

= a

iii

TABLE OF AUTHORITIES—Continued

Page

Ruckelshaus v. Monsanto Co., 467 U.S. 986

Nee esnccnsnsucereecer 21, 23, 24

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

SE 2

Sligh v. Kirkwood, 237 U.S. 52 (1915) alte 15

Stone v. Mississippi, 101 U.S. 814 (1879) 13

United States v. Central Eureka Mining Co., 357

Nee nn ceccneceenes 10

Village of Euclid v. Ambler Realty Co., 272 U.S.

i 7 11, 18, 23

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) _...... 1p 14

William Aldred’s Case, 77 Eng. Rep. 816 (K.B.

ES 11

Yee v. City of Escondido, No. 90- 1947 (argued

Jan. 22, 1992) ..... ces acaseenes | 2

STATUTORY MATERIAL:

Federal Statutes:

16 U.S.C. § 461... ces 2

a 2

Clean Air Act, 42 U.S.C. §§ 7401-7642 . 11, 21

Coastal Zone Management Act of 1972, 16 U.S.C.

$$ 1451-1464 | . 3,19

Comprehensive Environmental Response, Compen-

sation, and Liability Act, 42 U.S.C. §§ 9601-

9675 ee ne 21

Endangered Species Act of 1973, 16 U. S. C. Sg 1531-

1544 _.. 21

Federal Water Pollution Control ‘Act, 33 U. S.C.

$$ 1251-1387 11,21

Marine Protection, Research, and Sanctuaries Act

of 1972, 33 U.S.C. $$ 1401-1445 21

National Environmental Policy Act of 1969, 42

U.S.C. $§ 4321-4370b .. 21

Resource Conservation and Recovery Act, 42 U.S.C.

$$ 6901-6992 | 11,21

iv

TABLE OF AUTHORITIES—Continued

Page

State Statutes:

Fla. Stat. Ann. § 161.053(1) .. ner eae 20

South Carolina Beachfront Management Act, 1988

Act No. 634, codified at S.C. Code Ann. § 48-39-

SE Oe GN, cn senccnenavennienionaendbetapeensainciatacelainislans passim

South Carolina Coastal Zone Act, 1977 ‘Act No.

123, codified at S.C. Code Ann. § 48-39-10 et seq. 3

LEGISLATIVE MATERIAL:

S. Rep. No. 1110, 81st Cong., Ist Sess. 4 (1949),

reprinted in 1949 U.S.C.C.LA.N, 2285 _.. . 2

MISCELLANEOUS MATERIAL:

Comment, Shifting Sands and Shifting Doctrines:

The Supreme Court's Changing Takings Doctrine

and South Carolina’s Coastal Zone Statute, 79

Cal. L. Rev. 205 (1991) 20

W. Kaufman & O. Pilkey, The Beaches Are Moving

(1983) lasdaswimadoee _ 19, 20

Managing Coastal Erosion: Report of the National

vesearch Couneil (1990) 20

I. McHary, Design With Nature (1969) . 21)

IN THE

Suprene Court of the United States

OCTOLER TERM, 1991

No, 91-453

Davip H. LUCAS,

Petitioner,

Vv.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of South Carolina

BRIEF AMICUS CURIAE OF THE

NATIONAL TRUST FOR HISTORIC PRESERVATION

IN THE UNITED STATES

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, we file this brief

as amicus curiae in support of respondent South Caro-

lina Coastal Council. Letters of consent from counsel

for the parties have been filed with the Clerk.

The National Trust for Historie Preservation in the

United States (“National Trust”) was chartered by Con-

gress in 1949 as a private charitable and educational

2

organization to further the historic preservation policy

of the United States and to “facilitate public participa-

tion in the preservation of sites, buildings, and objects

cf national sienificance or interest.” 16 U.S.C. §§ 461,

468 (1988). Congress intended that the National Trust

“will mobilize and coordinate public interest and par-

ticipation in the preservation and interpretation of sites

and baildines from voluntary resources.” S. Rep. No.

1110, Slst Cong., Ist Sess. 4 (1949), reprinted in 1949

U.S.C.C.A.N, 2285, 2288. The National Trust has more

than 250,000 individual members, including over 4,000

members who reside in the State of South Carolina, as

well as some 6,600 member organizations nationwide.

The National Trust has a vital interest in securing

judicial decisions that ensure the continued validity and

effectiveness of regulatory protections for historic prop-

erties and regulations that otherwise serve to protect the

character of America’s cities, towns, and countrysides.

To this end, the National Trust, through its Legal De-

fense Fund, maintains an active legal advocacy program

to ensure the effective application of federal, state, and

local laws that protect historic resources, and to uphold

the constitutionality of such laws under both the U.S.

Constitution and the constitutions of the various states.

Since 1970, the National Trust has participated in nearly

70 cases in federal and state courts, including seven

cases before this Court involving challenges to govern-

mental regulatory authority under the Takings Clause

of the Fifth Amendment.*

"Yee v, City of Evcondido, No. 90-1947 (argued Jan. 22, 1992);

Preseault v. Interstate Commerce Comm'n, 494 U.S, 1 (1990): First

English Rvangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304 (1987); MacDonald, Sommer & Frates v. County of Yolo,

ATT US. 340 (1986); San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621 (1981): Agins v. City of Tiburon, 447 US. 255

(1980); Penn Central Transp. Co. v. New York City, 4238 U.S. 104

(1978).

3

STATEMENT

In 1977, the South Carolina legislature enacted the

Coastal Zone Act (“CZA"), 1977 Act No, 123 (codified

at S.C. Code Ann. § 48-39-10 et seq. (1987) (Pet. App.

42-97) ), which prohibited any new development in crit-

ical areas of the coastal.zone, at that time defined as

including coastal waters, tidelands, beaches, and primary

ocean front sand dunes. Jd. © 48-39-10(J) (Pet. App.

45). The CZA prohibited development in the area be-

yond the “front row of dunes adjacent to the Atlantic

Ocean.” Jd, § 48-39-1011) (Pet. App. 45).’ In 1986,

petitioner, a developer with extensive experience with

coastal properties, purchased two beachfront lots that

were zoned for construction of single family homes.

In 1988, South Carolina enacted the Beachfront Man-

agement Act (the “BMA"), in part to prevent erosion

of constal arens found to be necessary to “protect| | life

and property by serving as a storm barrier.” Beachfront

Management Act, 1988 Act No. 634 $4 (codified at S.C.

Code Ann. § 48-39-250i1) (a) (Pet. App. 981). To ac-

complish this eoul, the BMA enlarged the critical area

defined by the CZA to a setback line to be established

“utilizing the best available scientific and historical data.”

Id. § 48-39-2801 A) (Pet. App. 110+. The South Carolina

The CZA was enacted pursuant to the requirements of the fed-

eral Coastal Zone Manayement Act of 1972, 16 U.S.C. 8% 1451-1464

(1988) (“CZMA”), thereby allowing residents of South Carolina to

enjoy the benefits of federal wrants and flood insurance. One of the

primary national policies of the federal CZMA is “the management

of coastal development to minimize the loss of life and property

caused by improper development in flood-prone, storm surge, geo-

logical hazard, and erosion-prone areas ... and by the destruction

of natural features such as beaches, dunes, wetlands, and barrier

islands.” Jd. § 1452(2)(b). To accomplish this and other goals, the

CZMA requires participating states to implement programs for

protection of coastal resources which, among other things, define

“what shall constitute permissible land uses ... within the coastal

zone.” Id. § 1454(b) (2).

4

Coastal Council (“SCCC”), the state agency charged with

implementing and enforcing the BMA, established a new

setback line along the coast that was behind the landward

border of petitioner’s property, thereby prohibiting any

new construction on petitioner’s property. Petitioner

filed suit in the South Carolina Court of Common Pleas

seeking compensation under the Fifth and Fourteenth

amendments to the U.S. Constitution (and corresponding

state constitutional provisions) equal to the value of his

property, whick he claimed had been “taken” by the

BMA.’ The South Carolina Supreme Court held that no

taking had occurred.

SUMMARY OF ARGUMENT

In 1986, petitioner purchased two lots on a barrier

island on the South Carolina coast. The “land” compris-

ing petitioner’s lots has been entirely under water at

times within the last 40 years. In 1988, the South Caro-

lina legislature, finding that the coastal beach dune sys-

tem “protects life and property” and that construction

“has jeopardized the stability of the beach/dune system,

accelerated erosion, and endangered adjacent property

and development in coastal areas,” enacted the Beachfront

Management Act, which prohibited future coastal de-

velopment seaward of setback lines to be established,

“utilizing the best available scientific and historical data,”

landward of recent high water marks. The setback line

thereafter established is landward of petitioner’s lots.

Petitioner concedes “the public wisdom of the South

Carolina Act” (Br. 10) and does not challenge the wis-

dom of placing the setback line landward of his property.

His on/y contention is that since the BMA deprives his

2In 1990, South Carolina enacted amendments to the BMA au-

thorizing the SCCC to issue a “special permit” to build structures

otherwise prohibited if certain criteria are met. S.C. Code Ann.

§ 48-39-290(D) (Pet. App. 125-26). Petitioner has not sought such

a permit under the 1990 amendments.

5

property of all economic use, it effects a compensable

taking, regardless of the nature, validity, or strength of

the interest served by the BMA.*

I. This Court first held more than a century ago in

Mugler v. Kansas, 123 U.S. 623 (1887), that a state

may, without paying compensation, prohibit uses of prop-

erty that cause serious harm to persons or other prop-

erty. The principle that ownership of property does not

include the right to use it in ways that harm others is

of ancient vintage, is firmly established in the Court’s

takings cases. ¢md has never been seriously questioned.

The uses of property that cause serious harm to others

are not limited to a fixed and finite list. To the contrary,

whether a use is harmful may depend upon current

scientific knowledge and on the physical context of the

property (‘a nuisance may be merely a right thing in

the wrong place,—like a pig in a parlor instead of the

barnyard”!. A use may become or be discovered to be

harmful, and whether a use causes serious harm is

often a subject for legislative determination. Previously

acceptable uses of property may subsequently be deter-

mined to pose 2 threat of serious harm, as illustrated by

3 As the Solicitor General has pointed out (U.S. Br. 9-12), peti-

tioner’s claim of a “permanent” taking cannot be maintained in

light of the 1990 amendments to the BMA, authorizing construction

with a special permit for which petitioner has not yet applied. At

most, petitioner would have a claim for compensation for any dam-

ages incurred in the interval between adoption of the BMA and the

1990 amendment. Such a claim would present both legal and factual

issues that the South Carolina courts have had no occasion to con-

sider. These would include (i) whether petiitoner suffered any jury

at all during a period for which he has not attempted to prove any

plan for use, and (ii) whether the legislature could call a temporary

halt to escalating development on protective beaches while it devel-

oped a permitting system, without imposing any form of taking

even on a landowner ultimately held entitled to a permit. Rather

than decide important constitutional issues in such an inappropriate

context, the Court may prefer to allow petitioner the opportunity to

apply for a permit and then pursue any remaining taking claim.

6

the Court’s decisions in Mugler, Hadacheck, Reinman,

and Schoene. And a use may be harmful, and subject to

prohibition under the Mugler principle, if engaged in by

2 large number of property owners, even where a single

instance of that use might not be seriously harmful.

The right of a state to bar uses of property that

threaten serious harm to others, without paying compen-

sation, is not limited to cases where there is some permis-

sible economically viable use of the property. To the

contrary, it is based on the principle that a property

owner does not “own” the right to harm others. The

Mugler Court expressly assumed that the regulated brew-

eries might “become of no value as property,” and none

of the Court’s several decisions based on the Mugler prin-

ciple has suggested that an alternative economically viable

use must be available.

Il. The South Carolina legislature determined that ad-

ditional construction in the restricted areas would jeop-

ardize the beach dune system that protects life and prop-

erty. A court hearing a taking claim defended on Mugler

grounds should determine whether the statute or regula-

tion at issue substantially advances the goal of prevent-

ing serious harm to others. Here, based in part on peti-

tioner’s concession, the South Carolina Supreme Court

found that “discouraging new construction in close prox-

imity to the beach ‘dune area is necessary to prevent a

great public harm.” This Court should affirm on the

ground that the state court properly accepted petitioner’s

concession and then properly applied the Mugler principle.

Even if petitioner had not conceded the point, there

was ample basis for the conclusion of the South Caro-

lina legislature and the court below that barring further

construction on the restricted property was necessary to

prevent serious harm. Congress has recognized in the

Coastal Zone Management Act that destruction of

“beaches, dunes, wetlands, and barrier islands” causes

7

“loss of life and property.” The coast in question is vis-

ited by storms—most recently, Hurricane Hugo—that

take lives and cause devastating property losses. There is

abundant scientific basis for the South Carolina legis-

lature’s conclusion (with which other coastal states agree)

that barrier beaches, dunes, and islands, all important

buffers against such storms, cannot be preserved by arti-

ficial barriers and are weakened and destroyed by new

construction.

Petitioner does not contend that it was inappropriate

to draw the setback line landward of his property, which

has been under water within recent memory. Certain

amici point out that other landowners were allowed to

develop property prior to the imposition of the setback

line. But the legislature had the authority, when it

learned that traditional erosion control devices were coun-

terproductive, to bar further construction without requir-

ing demolition of existing structures.

Il. Certain amici suggest that any restriction on the

use of property, unless justified by the need to prevent

serious harm to others, is a taking, regardless of the

extent of the deprivation of use in question. This sug-

gestion is irrelevant to this case, which does involve seri-

ous public harm and a denial of all economic use of peti-

tioner’s property. But the suggestion is also seriously

wrong. The Ccurt has repeatedly recognized that other-

wise valid rezulation may substantially reduce the value

of property, and it has never found a regulatory taking

where economically viable uses of the property remain.

8

ARGUMENT

Petitioner’s only argument is that every regulation

that denies a property owner “economically viable use”

of his property effects a taking. (Br. 19.) We show in

Part I that a regulation barring uses of property that

threaten serious harm to others does not effect a taking,

even if the prohibited uses are the only economically

viable uses of the property. We show in Part II that the

South Carolina Supreme Court properly accepted the

findings of the state legislature that the building of addi-

tional structures on certain Atlantic beachfront property

threatened serious harm to persons and other property.

In Part ITI, we show, in response to the arguments of

certain amici on an issue not presented in this case, that

an otherwise proper regulation that does not eliminate

all economically viable use of a parcel of property can-

not be deemed to effect a taking.

I. A REGULATION BARRING USES OF PROPERTY

THAT THREATEN SERIOUS HARM TO OTHERS

DOES NOT EFFECT A TAKING, EVEN IF THE

PROHIBITED USES ARE THE ONLY ECONOMI-

CALLY VIABLE USES OF THE PROPERTY

A. This Court Has Long Recognized That a State May

Prohibit Uses of Property That Threaten Serious

Harm to Others Without Paying Compensation

More than a century ago, this Court made it crystal

clear that a state may, without paying compensation,

prohibit uses of property injurious to public health, safety,

or welfare:

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 property .... The

power which the States have of prohibiting such use

. is not--and, consistently with the existence and

9

safety of organized society, cannot be—burdened

with the condition that the State must compensate

such individual owners for pecuniary losses they

may sustain, by reason of their not being permit-

ted ... to inflict injury upon the community.

Mugler v. Kansas, 123 U.S. 623, 668-69 (1887). On

this basis, the Court upheld an ordinance effectively pro-

hibiting operation of a previously lawful brewery, al-

though the ordinance “operated to destroy the business

of the company, and seriously to impair the value of its

property.” Id. at 668.*

Applying the Mugler principle, the Court has repeat-

edly sustained uncompensated prohibitions of harmful

uses of property. See Reinman v. City of Little Rock,

237 U.S. 171 (1915) (law prohibiting operation of liv-

ery stables in downtown area); Hadacheck v. Sebastian,

239 U.S. 394 (1915) (law prohibiting operation of brick

yard and kiln in residential area); Miller v. Schoene,

276 U.S. 272 (1928) (law requiring destruction of cedar

trees because they harbored a disease harmful to apple

trees); Goldblatt v. Hempstead, 369 U.S. 590 (1962)

(law restricting dredging and pit excavating in residen-

* Petitioner and certain amici suggest that Mugler was de-

cided under the Due Process Clause of the Fourteenth Amendment

instead of the Takings Clause, and is therefore inapplicable here.

E..g., Br. 12-13; Brief Amicus Curiae of Pacific Legal Foundation

18-20. But the Court was explicitly responding to the contention

that the ordinance “is, in effect, a taking of property for public use

without compensation.” Mugler, 123 U.S. at 664. Any suggestion

that Mugler was overruled by Pennsylvania Coal Co. v. Mahon, 260

U.S. 393 (1922), is meritless. The decision in Pennsylvania Coal

turned on the fact that “the public interest is shown by the statute

to be limited” and the statute was “not justified as a protection of

personal safety.” Jd. at 414. Justice Holmes, who wrote for the

Court in Pennsylvania Coal, plainly did not believe it had overruled

Mugler, because he later joined the Court’s opinion in Miller v.

Schoene, 276 U.S. 272 (1928), upholding on the basis of Mugler the

uncompensated destruction of cedar trees to prevent cedar rust from

infecting more valuable apple trees nearby.

as 10

tial area).° Most recently, the Court sustained the power

of a state to prevent owners of coal property from re-

moving coal that supported surface structures, without

paying compensation, on the ground that the regulation

was designed to “prevent|] activities similar to public

nuisances.” Keystone Bituminous Coal Ass’n v. De-

Benedictis, 480 U.S. A70, 493 (1987).°

Even dissenters to the application of the Mugler prin-

ciple in specific cases have acknowledged the overall valid-

ity of the principle. For example, Chief Justice Rehn-

quist observed in dissent in Keystone that government

has “unquestioned authority to prevent 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. See also Penn Central Transp. Co. v. City of

New York, 438 U.S. 104, 144 (1978) (Rehnquist, J.,

dissenting) (recognizing the principle that “government

can prevent a property owner from using his property to

injure others without having to compensate the owner

for the value of the forbidden use’); id. at 145 (“the

question is whether the forbidden use is dangerous to the

safety, health, or welfare of others”); Lucas v. South

Carolina Coastal Council, 404 S.E.2d 895, 906 (S.C. 1991)

(Harwell, J., dissenting! (some “regulations may pro-

vide for the prevention of a nuisance and as such will

not require compensation to an affected landowner’).

The Mugler principle applies to uses of property that

cause serious harm to others—uses that violate the

5 See also United States v. Central Eureka Mining Co., 357 U.S.

155 (1958) (law requiring closure of gold mine).

®*The Keystone Court noted that state courts have consistently

upheld laws banning “nuisance-like activities” without payment of

compensation. See 480 U.S. at 492 n.22 (citing, e.g., Nassr v.

Commonwealth, 477 N.E.2d 987 (Mass. 1985) (hazardous waste

operation) ; MacLeod v. Takoma Park, 262 A.2d 581 (Md. 1970)

(unsafe building); Eno v. Burlington, 209 A.2d 499 (Vt. 1965)

(fire and health hazard) ).

11

maxim sic utere tuo ui alienum non laedas (“use your

property so as not to injure another’s”). But while the

maxim is ancient, the class of harmful uses must obvi-

ously be defined contemporaneously by the property’s

physical context and by current scientific knowledge. This

Court has explicitly recognized that the Mugler principle

is not confined to common law “nuisances.”* And the

Court has expressly recognized, in Justice Sutherland’s

memorable words, that “a nuisance may be merely a right.

thing in the wrong place,—like a pig in the parlor in-

stead of the barnyard.” Village of Euclid v. Ambler

Realty Co., 272 U.S. 365, 388 (1926). Use of land for

a brickyard (Hadacheck), for a livery stable (Reinman),

or to grow cedar trees (Schoene) is not inherently harm-

ful, any more than building a house is inherently harm-

ful. But in particular physical contexts, each of these

uses, including building a house, may be harmful—a

7 See Miller v. Schoene, 276 U.S. at 280 (“We need not weigh with

nicety the question whether the infected cedars constitute a nui-

sance ... .”); accord Goldblatt v. Hempstead, 369 U.S. 590, 593

(1962); Reinman v. City of Little Rock, 237 U.S. 171, 176 (1915).

The category of seriously harmful uses evolves over time and is

obviously subject to legislative definition. For example, although

air or water pollution that harms a neighbor has been deemed a

nuisance for centuries, see, ¢.g., William Aldred’s Case, 77 Eng. Rep.

816 (K.B. 1611) (enjoining and awarding damages for a nuisance

created by odors from a hog sty); Beach v. Sterling Iron & Zine

Co., 33 Atl. 286, 291-93 (1895) (enjoining as a nuisance the dumping

of clay extracted from a mining operation into the river upstream

of piaintiff’s property), aff'd, 41 Atl. 1117 (NJ. 1896), greater

understanding of the severity of the pollution threat has resulted in

comprehensive, detailed federal statutes regulating its sources, such

as the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387

(1988), the Clean Air Act, 42 U.S.C. §§ 7401-7642 (1988). and the

Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992

(1988). The Court has recognized that these regulatory programs

have both evolved from and displaced the historic theories of nui-

sance. See City of Milwaukee v. Illinois, 451 U.S. 304 (1981)

(Federal Water Pollution Control Act displaced federal common law

of nuisance ).

12

substantial intrusion upon the safe and beneficial use and

enjoyment of other property.*

It is equally clear that a particular use of property

can become a harmful use ‘and, a fortiori, that a use

can be discovered to be a harmful use) after the property

is acquired by a particular owner. The brick kiln in

Hadacheck became harmful when a residential neighbor-

hood grew up around it. See Hadacheck, 239 U.S. at

405, 410-11. The owner of coal lands discovered to con-

tain poisonous gases could surely be barred, without

compensation, from mining that would release the gases.

Cf. Pennsylvania Coal, 260 U.S. at 418 (Brandeis, J.,

dissenting). While such a landowner would have suffered

a misfortune that might command public sympathy, the

public would not be the cause of that misfortune, and an

uncompensated prohibition against such mining, while

undoubtedly a burden, would not be an “unfair” burden

to impose.

Petitioner suggests that it is inherently “unfair” to

bar a use of property that had hitherto been acceptable.

But if changing circumstances or new scientific know]-

edge about the harm caused by a prohibited activity are

the source of the new restriction, it is not “unfair” to

modify the laws accordingly. Indeed, the Mugler Court

itself recognized that a legislature may enact new pro-

hibitions based on evolving knowledge and evolving per-

ceptions of harm:

It is true, that, when the defendants in these cases

purchased or erected their breweries, the laws of the

*Some amici suggest that the right to build a house is so funda-

mental that its prevention, without more, gives rise to a claim for

compensation. E..., Brief of Washington Legal Foundation, et al.,

as Amici Curiae 18-20. But there is-no such doctrine. House con-

struction is of course usually a non-harmful use, but there is no

“inherent” right to build a house in an area where, because of

unusual conditions, such construction threatens serious harm to life

and other property.

13

State did not forbid the manufacture of intoxicat-

ing liquors. But the State did not thereby give any

assurance, or come under an obligation, that its

legislation upon that subject would remain un-

changed. ... {T]he supervision of the public health

and the public morals is a governmental power,

“continuing in its nature,” and “to be dealt with as

the special exigencies of the moment may require;”

and that, “for this purpose, the largest legislative

diseretion is allowed, and the discretion cannot be

parted with any more than the power itself.”

Mugler, 123 U.S. at 669 (quoting Stone v. Mississippi,

101 U.S. 814 (18791). See also Keystone, 480 U.S. at 488

(“circumstances may so change in time .. . as to clothe

with such a |public] interest what at other times. .

would be a matter of purely private concern”) (quoting

Block v. Hirsh, 256 U.S. 135, 155 (1921)); Village

of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-87

(1926).

Finally, a legislature may prohibit, on the Mugler

principle, a class of use that collectively threatens serious

harm te the public, even though a single instance of

such use might not be seriously harmful. If placement

of a number of houses en an oceanfront bluff would be

likely to cause erosion, loss of the bluff, and resulting

damage to landward property, a state may surely pro-

hibit all such houses, without paying compensation, even

if building the first house alone would not cause serious

harm. And if it were discovered after the building of

the first house that building a number of additional

houses would threaten serious damage, the legislature

could call a halt at that point, again without paying

compensation to the owners denied the right to do what

their neighbors had done.” The prohibition would be sub-

“Certain amici object that the restricted landowner enjoys no

“reciprocal advantage” if he is wholly barred from building. But

barring a harmful use of property does not require any such direct

reciprocity: the property owners in Mugler, Hadacheck, and Schoene

14

ject to examination to determine whether it does indeed

substantially advance the goal of preventing 2 serious

public harm, but if the prohibition passes that test, it rests

squarely on the Mugler principle and, indeed, on a prin-

ciple as old as the law of property.

B. The Principle That a State May Bar Uses of Prop-

erty That Threaten Serious Harm Remains Appli-

cable Even if the Barred Uses Are the Only Eco-

nomically Viable Uses of the Property

Petitioner contends that the Mug/er principle ceases to

apply where the barred use is the only valuable use of

the property: where this is the case, he argues, the state

must always pay compensation. (Br. 19-35.) But that

contention, which is rejected by certain of his amici (sce

U.S. Br. 13-17; Brief of the Institute for Justice 20),

is consistent neither with logic nor with precedent.

First, petitioner misses the point of the Mugler prin-

ciple. While the principle has occasionally been referred

to as a “nuisance exception” to the law of takings, it

rests on the basic proposition that property rights do

not encompass the right to harm others. No state’s law

defines “private property” to include a right to engage

in activity that threatens harm to the public.’”” As this

Court recognized in Keystone, “Since no individual has

a right to use his property so as to create a nuisance or

otherwise harm others, the State has not ‘taken’ anything

when it asserts its power to enjoin the nuisance-like ac-

enjoyed no advantage from the regulations at issue. See Pennsyl-

vania Coal, 260 U.S. at 422 (Brandeis, J., dissenting): see also

Keystone, 480 U.S. at 491 & n.21.

” As noted by Chief Justice Rehnquist in his dissent in Keystone,

“Property interests are not created by the Constitution. Rather,

they are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as

state law.’” ZId. at 519 (quoting Webb's Fabulous Pharmacies, Inc.

v. Beckwith, 449 U.S. 155, 161 (1980) and Board of Regents v. Roth,

408 U.S. 564, 577 (1972) ).

15

tivity.” Keystone, 480 U.S. at 491 n.20." “*|A]Il prop-

erty in this country is held under the implied obligation

that the owner’s use of it shall not be injurious to the

community,” id, at 491-92 (quoting Mugler, 123 US.

at 6651, and enforcement of that obligation does not

trigger a right tocompensation. /d.

Second, this Court’s precedents are wholly inconsistent

with the notion that there is a right to some econom-

ically viable use of property that trumps the govern-

ment’s right to bar harmful uses without compensation.

In Juggler itself, the Court assumed as one possibility

that the brewery buildings lacked any other use, and that

“such establishments will become of o value as property.”

123 U.S. at 664 (emphasis added). The Court did not

suggest that the right to prohibit brewing activities with-

out paying compensation turned on the availability of

some residual valuable use. The majority in Pennsylvania

Coal did not dispute Justice Brandeis’s reading of the

enrlier cases as establishing that no such residual val-

uable use is necessary: “Restriction upon |harmful] use

does not become inappropriate as a means, merely be-

cause it deprives the owner of the only use to which the

property can then be profitably put.” 260 U.S. at 418

(citing, ¢e.g., Mugler, Powell v. Pennsylvania, 127 US.

678 (1888), and Hadacheck).'* No decision of this Court

1! Economists would refer to uses of property that impose harm

on others as creating “externalities,” costs that are not borne by

the owner of the land. A regulation addressing such externalities

by restricting a harmful use, where the harm is greater than the

benefit otherwise reasonably expected to be realized from the pro-

posed use of the property, merely corrects this situation by taking

into account all of the costs associated with his use.

'2 The Court has also held that owners whose real property is

wholly destroyed to prevent the spread of a fire, see Bowditch v.

Boston, 101 U.S, 16, 18-19 (1879), or whose personal property is

wholly destroyed to prevent the spread of disease, see Sligh »v.

Kirhwood, 237 U.S. 52, 59-60 (1915), are not entitled to compensa-

tion.

16

has suggested that an alternative economic use of prop-

erty must be available when a harmful use of property is

prohibited."

There are obvious circumstances in which a legislature

must be able to prevent harm by depriving an owner of

all economically viable use without triggering any claim

for compensation—circumstances in which the regulation,

although it eliminates all economic use, would not bar

anything the owner had a right to do. The Solicitor Gen-

eral suggests (U.S. Br. 14) a building safety code regu-

lation, enforceable without compensation even against

property on which it renders construction economically

infeasible. Similarly, a regulation adopted in response to

a newly discovered threat to safety (such as a geological

fault or a flood threat created by a forest fire’s destruc-

tion of neighboring trees) would be valid notwithstand-

ing its impact on prior expectations. For example, if

scientific advances allowed accurate prediction that a

particular area of Washington State was likely to suffer

a serious earthquake or volcanic eruption, surely the

13 [In Miller v. Schoene, in the course of demonstrating that apple

trees are more valuable than red cedar trees, the Court noted in

passing that red cedar has “occasional use and value as lumber.’

276 U.S. at 279. But the Court did not discuss whether the timber

owned by the petitioner in that case was commercially saleable, and

nothing in the opinion remotely suggests that the state’s right to

require uncompensated felling of the trees depended on any such

salvage value. To the contrary, it is perfectly clear from its unani-

mous opinion that the Schoene Court would have sustained a law

requiring the burning of cedar trees if that had been necessary to

protect apple trees in which there was a public interest: the Court

spoke of preferment of the public interest over the property interest

of the individual, “to the extent even of its destruction.” Jd. at 280.

The Court’s discussion of Schoene in Penn Central Transportation

Co. v. New York City, 438 U.S. 104, 126 (1978), mentions the

owner's right “to use the felled trees” but does not suggest that

Schoene turned on that point. But cf. Keystone, 480 U.S. at 513

(Rehnquist, C.J., dissenting).

17

State could bar all new construction in this area. The

discovery of a new offshoot of the San Andreas fault or

of new rumblings within Mt. St. Helen’s could create

misfortune, but regulations reasonably responsive to such

threats would not require compensation. The issue in the

present case, to which we now turn, is whether the BMA,

as applied to petitioner, substantially advances a legiti-

mate state interest in preventing serious harm.

Il. THE SOUTH CAROLINA SUPREME COURT PROP-

ERLY ACCEPTED THE FINDING OF THE SOUTH

CAROLINA LEGISLATURE THAT BUILDING AD-

DITIONAL STRUCTURES ON COASTAL PROP-

ERTY THREATENED SERIOUS HARM

The Svuth Carolina legislature expressly found, in en-

acting the BMA, that the prohibited building activities

would cause serious harm to others. The BMA declares

that the beach dune system “protects life and property

by serving as a storm barrier which dissipates wave

energy and contributes to shoreline stability in an eco-

nomical and effective manner.” S.C. Code Ann. § 48-39-

250(1) (a) (Pet. App. 98). It further declares that un-

wise development “has jeopardized the stability of the

beach dune system, accelerated erosion, and endangered

adjacent property.” Jd. § 48-39-250(4) (Pet. App. 99).

Explaining the means chosen to effectuate its purposes,

the legislature stated in the BMA that the

use of armoring in the form of hard erosion control

devices such as seawalls, bulkheads, and rip-rap to

protect erosion-threatened structures adjacent to the

beach has not proven effective. These armoring de-

vices have given a false sense of security to beach

front property owners. In reality, these hard struc-

tures, in many instances, have increased the vulner-

ability of beach front property to damage from wind

and waves....

Id. § 48-39-250(15) (Pet. App. 99). In sum, the legisla-

ture found that “Erosion is a natural process which be-

18

comes a significant problem for man only when struc-

tures are erected in close proximity to the beach/dune

system.” Jd. § 48-39-250(6) (Pet. App. 99-100). It

therefore acted “to arrest what it perceive|d| to be a

significant threat to the common welfare.” Aeystone, 480

U.S. at 485.

Petitioner conceded in the South Carolina courts (as he

does in this Court) “the public wisdom of the South Car-

olina Act” (Br. 10), and he declined to litigate any issue

concerning the BMA’s purposes or the appropriateness

of the setback lines as applied to his property. To the

contrary, he argues only that the Mugler principle either

has not survived or cannot be applied to any case where

a regulation, however valid, leaves no economically viable

use of property. The South Carolina Supreme Court,

accordingly, understood petitioner not to contest the

state’s position that “discouraging new construction in

close proximity to the beach dune area is necessary to

prevent a great public harm” (Pet. App. 8) and “to pre-

vent serious injury to the community.” (/d. at 15.) It

considered itself “bound by these uncontested legislative

findings .... [in the absence of] any attack whatsoever

on the statutory scheme... .” (Jd. at 8-9.) The state

court correctly rejected petitioner’s contention that the

Mugler principle could have no possible application to

this case and then, quite logically given petitioner’s posi-

tion, treated Mugler as dispositive.

Absent any challenge from petitioner, it was entirely

proper for the South Carolina Supreme Court to accept

the legislature’s findings at face value. If petitioner

wished to argue (as some amici_do in this Court) that

the threatened harm was not sufficiently serious to make

building a house in a particular location a “harmful” use,

or that the threat was not supported by sufficient find-

ings, or that it is not clear whether the legislature was

actually motivated by the threat of hurricane damage to

coastal areas, the place to have made those arguments

was in the South Carolina courts. When petitioner chose

instead to rely solely on the argument that Mugler can-

19

not apply to him because he lost all economically viable

use of his land, the state court was justified in assuming

that the legislature was seeking in good faith “to arrest

. a significant threat to the common welfare.” Key-

stone, 480 U.S. at 485.

This Court should therefore affirm the South Carolina

court’s decision on the ground that the Mugler principle

remains valid and is applicable even where all economi-

cally viable use of property is eliminated, and that the

state court was entitled to accept the unchallenged find-

ings of its legislature that make the Mugler principle ap-

plicable here.

But even if petitioner had-_challenged the legislature’s

findings, there was ample basis for the South Carolina

court to determine that the BMA substantially advances

a state interest in preventing serious harm. In scrutiniz-

ing a statute claimed to effect a taking, a court must of

course “examine the operative provisions of a statute, not

just its stated purpose, in assessing its true nature.”

Keystone, 480 U.S. at 487 n.16. But the BMA easily

withstands such scrutiny, for there was substantial basis

for the South Carolina legislature’s finding that construc-

tion of additional buildings seaward of a line drawn

utilizing “the best available scientific and_ historical

data,” S.C. Code Ann. § 48-39-280(A) (Pet. App. 110),

would threaten serious harm to people and property.

In the federal Coastal Zone Management Act, pursuant

to which the state BMA was enacted, Congress itself

recognized the threat of “loss of life and property caused

by ... the destruction of natural protective features such

as beaches, dunes, wetlands, and barrier islands.” 16

U.S.C. § 1452(2)(B) (1988). The threat of harm is

certainly real: hurricanes, other storms, and ocean waves

and flooding take large numbers of lives and cause ex-

tensive property damage,"* and South Carolina knows

this well. Hurricane Hugo, buffeting the South Carolina

M4 See, e.g., W. Kaufman & O. Pilkey, The Beaches Are Moving

128-32 (1983).

a tain eee

20

coast, took 29 lives in that state and inflicted devastating

damage on Charleston, one of America’s most beautiful and

historic cities.'* Oceanfront development in storm areas

poses a direct threat to property owners themselves, to

storm rescue teams, and to landward property owners

threatened by storm-created debris. Such development

also leads to the loss of barrier beaches and barrier

islands (like the Isle of Palms on which petitioner’s

property is situated) through erosion, loss of vegetation,

and failure to accrete additional sand.” Barrier beaches

up and down a coastline protect populated areas. Thus,

while the wide beach and dune area buffer zone presently

found on the Isle of Palms helped to protect some of its

houses from destruction by Hurricane Hugo, other

beaches subjected to long-term erosion were devastated

by the storm.'’’ The South Carolina legislature was thus

fully justified in determining that landowners who build

structures on barrier beaches are using their property in

a way that threatens concrete and serious harm to the

lives and property of others."*

' See Comment, Shifting Sands and Shifting Doctrines: The

Supreme Court's Changing Takings Doctrine and South Carolina's

Coastal Zone Statute, 79 Cal. L. Rev. 205, 213 (1991). As a result

of Hurricane Hugo alone, the federal government has made pay-

ments of $1.024 billion in aid to South Carolina. Jd. at 215.

See generally 1. McHarg, Design With Nature 7-12 (1969):

Managing Coastal Erosion: Report of the National Research Coun-

cil 23 (1990); W. Kaufman & O. Pilkey, swpra note 14, at 109.

1? See Managing Coastal Erosion, supra note 16, at 166.

™ Several othir states have adopted similar legislation. See

Comment, supra note 15, at 216-18 & nn.46-48 (citing state statutes).

The Florida legislature found when enacting its Beach and Shore

Preservation Act that “imprudent construction .. . can jeopardize

the stability of the beach-dune system, accelerate erosion. provide

inadequate protection of upland structures and endanger adjacent

properties.” Fla. Stat. Ann. § 161.053(1) (West 1984).

The South Carolina legislature also referred to the threat of

environmental damage. Certain amici assert that this is not a

serious public harm within the Mvgler principle. But Congress has

21

Finally, petitioner has never suggested, nor could he,

that it is inappropriate to apply the BMA to his specific

property. To the contrary, petitioner must acknowledge

that his property has been under water during the last

forty years. (See J.A. 9.) The SCCC’s drawing of the

setback line to include his property was entirely reason-

able. To be sure, landowners who had developed their

beachfront property prior to imposition of the setback

line were less severely affected by implementation of the

BMA,” but the legislature’s evolving understanding (re-

flected in the statutory findings) that traditional erosion

control devices are counterproductive permitted it to bar

new building without requiring demolition of existing

structures.”

certainly concluded otherwise. See, e.g., Endangered Species Act of

1973, 16 U.S.C. §§ 1531-1544 (1988): Marine Protection, Research,

and Sanctuaries Act of 1972, 33 U.S.C. $$ 1401-1445 (1988); Na-

tional Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370b

(1988) ; Comprehensive Environmental Response, Compensation, and

Liability Act, 42 U.S.C. §§ 9601-9675 (1988): Resource Conserva-

tion and Recovery Act, 42 U.S.C. $§ 6901-6992 ( 1988); Federal

Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1988); Clean

Air Act, 42 U.S.C. §§$ 7401-7642 (1988).

' Such landowners are subject to restrictions on rebuilding any

structures that are destroyed in the future. S.C. Code Ann. § 48-39-

290(B)(1) (Pet. App. 117-19).

*° The SCCC might also have been able to show that petitioner,

an experienced developer, took a deliberate gamble—that in 1986 he

could have anticipated the possibility of further restrictions to pro-

tect a sensitive area but chose to take that risk. Cf. Ruckelshaus

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

Indeed, if after petitioner’s purchase the beach had eroded ( as,

historically, it had) so that petitioner’s property was on the wrong

side of the first line of dunes, then the prior statute, based on the

previous public understanding of the nature of the erosion risk,

would itself have prohibited all construction—yet the loss of that

“right to build” would not have been compensable. As it happened,

what shifted was not-the beach but the public understanding of the

nature and severity of the risk of erosion. Petitioner lost his gamble

because of the nature of his property, as that nature came to be

known, not because of a capricious decision on the part of any

legislature.

22

Ill. AN OTHERWISE PROPER REGULATION, NOT

INVOLVING A PERMANENT PHYSICAL OCCUPA-

TION, CANNOT EFFECT A TAKING UNLESS IT

DENIES ALL ECONOMICALLY VIABLE USE OF

PROPERTY

Various amici suggest that any restriction on the use

of property, unless justified by the need to prevent serious

harm to others, effects a taking, even if the restriction

does not eliminate al] economically viable use of the prop-

erty. According to one, “The proper rule is thus one of

strict proportion: the greater the taking, the greater the

restriction, then the greater the compensation that must

be paid.” Brief of Institute for Justice as Amicus Curiae

13; see also Brief of Amicus Curiae The Nemours Foun-

dation, Inc. 11-12. These suggestions are not pertinent to

this case, which involves a restriction that is intended to

prevent serious harm and apparentiy denies all economic

use of petitioner’s parcels. But the suggestion is also se-

riously wrong.

As Justice Holmes said in the case that is the fountain-

head of this Court’s regulatory takings jurisprudence,

“Government could hardly go on if to some extent values

incident to property could not be diminished without pay-

ing for every such change in the general law.” Pennsyl-

vania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). Over

and over since then, the Court has recognized that govern-

ments may adopt measures that substantially adjust the

burdens and benefits of economic life and reduce the value

of property without effecting a compensable taking. In

Hodel v. Irving, 481 U.S. 704, 713 (1987), for example,

the Court noted that “the Government has considerable

latitude in regulating property rights in ways that may

adversely affect the owners.” In Penn Central Transpor-

lation Co. v. New York City, 438 U.S. 104, 124 (1978),

the Court affirmed that “government may execute laws

or programs that adversely affect recognized economic

values.” And the Court has repeatedly stated that a regu-

i eileen

23

lation reducing the value of property “does not effect a

taking if it ‘substantially advance[s] legitimate state in-

terests’ and does not ‘den|y] an owner economically viable

use of his land.’” Nollan v. California Coastal Comm’n,

483 U.S. 825, 834 (1987) (quoting Agins v. City of Ti-

buron, 447 U.S. 255, 260 (1980) ).

Indeed, the Court has never found a regulatory “tak-

ing” based on the quantum of value the owner has lost un-

less the owner has been deprived of all economic use of a

properly defined parcel of property.*' For example, in

Pennsylvania Coal, the Court found that the regulation

went “too far” because, inter alia, it eliminated all value

of the coal in question: “To make it commercially imprac-

ticable to mine certain coal has very nearly the same ef-

fect for constitutional purposes as appropriating or de-

stroying it. This we think that we are warranted in

assuming that the statute does.” 260 U.S. at 414-15. In

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

Court found a taking where the government completely

destroyed materialmen’s liens against ships. Although it

relied on other considerations as well, the Court clearly

stated: “Before the liens were destroyed, the lienholders

admittedly had compensable pronerty. Tmmediately after-

wards, they had none.” Jd. at 48. In Ruckelshaus v.

Monsanto Co., 467 U.S. 986 (1984), the Court found that

a regulation authorizing EPA to disclose data submitted

confidentially by plaintiffs effected a taking, because it

would utterly destroy the “economic value” of the data.

Id. at 1011-12.

By contrast, this Court has never found a regulatory

taking where economically viable uses of property remain.

In Villave of Euclid v, Ambler Realty Co., 272 U.S. 365.

381 (1926), the Court uphe'd a law imposing a 75 per-

cent diminution in value. In Andrus v. Allard, 444 U.S.

—_-—_

eo eae

*! Petitioner concedes (Br. 10) that the present case does not

involve a permanent physical occupation.

|

24 - 25

51, 66-68 (1979), the Court upheld against a taking chal- CONCLUSION

lenge a statute limiting the sale of eagle feathers, though The decision of the Supreme Court of South Carolina

the feather owners’ ability to derive economic benefit was should be affirmed.

drastically reduced by the statute. See also Penn Central, Respectfully submitted,

438 U.S. at 104 (regulation denying right to exploit valu-

able air rights did not effect taking).

. , — JEROLD S. KAYDEN LLoYD N. CUTLER

Virtually every regulation of economic life has the ef- 66 Dana Street Louw R. Comme

fect of denying some property a portion of its value. Since Cambridge, MA 02138 Gunes of Record

1922, the Court has recognized that the question whether (617) 661-8016 DAVID R. JOHNSON

a regulation affecting the use of private property “goes Of Counsat: JAMES R. WRATHALL

too far” and effects a taking “cannot be disposed of by mee Sete Peter B. Hutt II

general propositions.” Pennsylvania Coal, 260 U.S. at 415, Paue, W. Beesosmece WILMER, CUTLER &

416. The answer is given not by any bright-line test but Bi ssere © Meer PICKERING

by a combination of factors: “the economic impact of the NATIONAL TRUST FoR 2445 M Street, N.W.

regulation on the claimant,” “the extent to which the reg- Historic PRESERVATION Washington, D.C. 20037

ulation has interfered with distinct investment-backed ex- IN THE UNITED STATES (202) 663-6000

pectations,” and “the character of the government action.” 1785 Massachusetts Ave., N.W.

Penn Central, 438 U.S. at 124. The result of apply- Washington, D.C. 20036

ing these factors in a given case may well be to reduce a (202) 673-4035

property’s value without compensation to the owner. But February 3, 1992 Counsel for Amiens Curtas

such an owner shares in the advantage derived by every-

one from the capacity of our elected legislatures to regu-

late the uses of property even when regulation reduces

value; it is “the advantage of living and doing business

in a civilized community.” Ruckelshaus v. Monsanto Co.,

467 U.S. at 1007.

eo