Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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\ | Supreme Court,

(4) FILE

No. 91-453

IN THE

Supreme Court of the United

OCTOBER TERM, 1991

Davip H. Lucas,

. Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF THE

U.S. CONFERENCE OF MAYORS,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL CONFERENCE OF

STATE LEGISLATURES, NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS, AND NATIONAL LEAGUE

OF CITIES AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

BABRARA E, ETKIND RICHARD RUDA *

CHARLES T. BLAIR Chief Counsel

SETH D. BERLIN MICHAEL G. DZIALO

Ross, Dixon & MASBACK STATE AND LOCAL LEGAL CENTER

601 Pennsylvania Ave., N.W. 444 North Capitol Street, N.W.

North Building Suite 345

Washington, D.C. 20004 Washington, D.C. 20001

(202) 662-2000 (202) 638-1445

J. PETER BYRNE * Counsel of Record for the

GEORGETOWN UNIVERSITY Amici Curiae

LAW CENTER

600 New Jersey Ave., N.W.

Washington, D.C. 20001

Of Counsel

OF THE RK

WILSON - EPES PRINTING Co.,. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether principles of ‘justice and fairness” require

this Court to reverse the decision of the Supreme Court

of South Carolina and find a compensable taking of peti-

tioner’s property under that State’s Beachfront Manage-

ment Act solely because of the property’s diminution in

value and without regard to the compelling public safety

rationale for the legislation.

(i)

TABLE OF CONTENTS

i eceees

Il.

SOUND PRINCIPLES OF FEDERALISM

COUNSEL RESTRAINT IN REVIEWING

CLAIMS THAT STATE LAND USE REGU-

LATIONS CONSTITUTE TAKINGS 0...

A. This Court Properly Looks To State Law To

Define Property Rights...

B. The Formulation of Laws Addressing Harm-

ful, Nuisance-Like Uses Of Property Is Best

WHETHER ANALYZED UNDER THE “NUI-

SANCE” EXCEPTION OR THIS COURT'S

MULTI-FACTOR TEST, THE APPLICATION

OF SOUTH CAROLINA’S BEACHFRONT

MANAGEMENT ACT TO PETITIONER’S

PROPERTY PASSES CONSTITUTIONAL

A. The Harm Against Which The Beachfront

Management Act Is Directed Is Well Within

The Class Of Harmful Uses Contemplated

By The “Nuisance” Exception

1. The Nuisance Exception Permits States

To Prohibit Harmful Uses Of Property

Without Providing Compensation Even

Where No Economic Viability Remains _

(iii)

iv Vv

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page CASES Page

2. The Beachfront Management Act’s Pur- Agins v. City of Tiburon, 447 U.S. 255 (1980) 22

pose Of Protecting Lives And Property Armstrong v. United States, 364 U.S. 40 (1960). 8

Satisfies The “Nuisance” Exception ........ 18 Bishop v. Wood, 426 U.S. 341 (1976) ... eroceeneee 7

Board of Regents v. Roth, 408 U.S. 564 (1972) . emis 7

B. The Beachfront Management Act Plainly Boomer v. Atlantic Cement Co., 257 N.E.2d 870

Satisfies This Court’s Multi-Factor Test __..... 21 " - a ARR Pie ita ee ee 16

1. This Court’s Multi-Factor Test By Defi- Chicago, B. & O. R. Co. v. Illinois, 200 U.S. 561

nition Takes Into Account More Than eee 15

Remaining Economic Viability Vel Non. 21 nnn v. Town of Hempstead, 369 U.S. Tail

2. The Compelling Public Interest That Is Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) 10

Served By The South Carolina Statute Hadacheck v. Sebastian, 239 U.S. 394 (1915) 14, 15

Outweighs The Other Two Factors Com- Hall v. Board of Environmental Protection, 528

prising The Multi-Factor Test 0... 22 a ee i 24

a. Character Of The Government Action.. 22 Hawaii Housing Authority v. Midkiff, 467 U.S. 229

b. Reasonable Investment-Backed Expec- (1984) nn nnnnnnnnneeceenesneeneeesseeseessesecenesenennnenesnes 11

Sa ee, Es ad 23 Hodel v. Irving, 481 US. RE 24

Srey Kaiser Aetna v. United States, 444 U.S. 164

c. Economic Viability ................................ 23 Pp EAE Oe a RY 7, 23, 24

C. Petitioner’s Sole Reliance On A “Finding” Of Keystone Bituminous Coal Association v. DeBene-

No Remaining Economic Viability Alone dictis, 480 US. 470 (1067) .......................---.--------- passim

Provides A Basis For Affirming The Deci- Loretto v. Teleprompter Manhattan CATV Corp.,

ON 8 Stee) Nomen! 25 es MY i ereatistellstinecctcsecanadcinccnecctetinies 13, 22

Miller v. Schoene, 276 U.S. 272 (1928) ........11, 14, 15, 17

RENAN ee reds PUT Adah ce ce SS eee: 27 Mugler v. Kansas, 123 U.S. 623 (1887) ............... passim

Nectow v. City of Cambridge, 277 U.S. 183 -

SAE SCRE LEYS Sa 5a SS EA 11,17

New State Ice Co. v. Liebmann, 285 US. 262

Eee eee Ne NORM odo ALT NA NOP 10

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

RRR E Ss tthe I a 13, 24

Omnia Commercial Co. v. United States, 261 U.S.

502 (1923) . sani ialidahidvadisiaetcots 17

Paul v. Davis, 424 US. 693 (1976) . ‘ibbiamatemidatenbes 7

Penn Central Transportation Co. v. City of New

York, 438 U.S. 104 (1978) .......................... 14, 15, 16, 17

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

ROUEN cseckscnietusapiesacdsniecuenmiaiinatced nisi see 12, 21

Powell v. Pe nnsylvania, 127 U.S . 678 (1888) ......... 14, 17

TABLE OF AUTHORITIES—Continued

Page

PruneYard Shopping Center v. Robins, 447 U:S.

74 (1980)... a ca a 5 5

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

IT cclieclicihihiinicicpatiicighaacteit ieee es as 14, 20

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

(1984) artes: SY

United States v. Lynah, 188 US. 445 (1903) acanies 22

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

I 9,14

- Zahn v. Board of Public Works, O74 US. 325

SE ae siden caalne adn matte tine omit La 14

STATUTES

Coastal Zone Management Act, 16 U.S.C.A.

§§ 1451-1464 (West 1985 & Supp. 1991). 2

National Flood Insurance Program, 42 U.S.C.A.

$$ 4001-4128 (West 1987 & Supp. 1989) 19

Ala. Code §§ 9-7-10 to 9-7-20 (1987). : ee 2

Alaska Stat. §§ 46.40.10-46.40.210 (1991) — 2

Cal. Pub. Res. Code §§ 30000-30900 (West 1986 &

a ae 2

Conn. Gen. Stat. Ann. $§ 22a-90 to 22a-113j, 25-69

to 25-102 (West 1985 & Supp. 1991). 2,3

Del. Code Ann. tit. 7 §§ 7001-7013, 6801 to 6812

(1991) idinianiaiandaianieinna rei cia ae eo 2,3

Fla. Stat. Ann. §§ 160.001-161.58, 380. 19- 380. 28

(West 1988 & due. RS SE Se ae 2

Ga. Code Ann. §§ 12-5-210 to 12-5-246 (1991)... 2

Haw. Rev. Stat. §§ 205A-1 to 205A-49 (1988 &

RES Ere Sn ar 2,3

La. Rev. Stat. Ann. §§ 49:213. 1-49: 214. 41 (West

1987 & Supp. 1991). OSes LO 2

Me. Rev. Stat. Ann. tit. 38 §§ 1801-1905 (1989 &

Supp. 1991) ................. 2

Me. Rev. Stat. Ann. tit. 38 gg 435, 439- A(4) (1989

Supp. 1991) ............. ut BAe 3

Me. Rev. Stat. Ann. tit, a8 § § 4804-490 (1989 &

‘Supp. 1991) - - 2

vii

TABLE OF AUTHORITIES—Continued

Md. Nat. Res. Code Ann. §§ 8-1001 to 8-1105.1

I An I,

Mass. Gen. Laws Ann. ch. 21A $ 4A (West Supp.

as seseenimiimaaiteeaiiibesticcecbtinui cia aaa

Mich. Comp. Laws §§ 281 601-281 65la (West 1979

& Supp. 1991) . a.

Miss. Code Ann. gg 49- 27- 1 to 49-27- 69 (1990) .

N.H. Rev. Stat. Ann. § 215-A:5-a, §§ 482-A:1 ‘to

482-A:27 (Supp. 1990). ene

N.J. Stat. Ann. §§ 13:19-1 to 13: 19-21 ‘(West 1979

& Supp. 1990). SEE a ee Oe

N.Y. Envtl. Conserv. Law $§ 34-0101 to 34-0113

(McKinney 1984 & Supp. 1992)...

N.C. Gen. Stat. ©§ 113A-100 to 113A-134.3 (1991).

Or. Rev. Stat. §§ 196.105-196.990 (1991)...

R.i. Gen. Laws §§ 46-23-1 to 46-23-21 (1991).

S.C. Beachfront Management Act, 1988 Act No.

631, codified at S.C. Code Ann. §§ 48-39-10 et

seq. (Law Co-op. Supp. 1990) 5S RNAs

S.C. Coastal Zone Management Act, 1977 Act No.

123, codified at S.C. Code Ann. §§ 48-39-10 ef

seq. (Law. Co-op. 1987)

S.C. Code Ann. §§ 48-39-10 to 48-39- 360 (Law.

Co-op. 1987 & Supp. 1990)...

S.C. Stat. Ann. § 48-39-250(1) (a) (Law. Co-op.

Supp. 1990)

S.C. Stat. Ann. § 48-39-2506) (Law. Co-op. Supp.

1990)

S.C. Stat. Ann. § 48- 39- 250(8) (Law. Co-op. ‘Supp.

ile TRO tat MESA Bae A GSR Bie ah A

S.C. Stat. Ann. § ‘48- 39- 260 (Law. Co-op. Supp.

le a a Ia tie I Aan: Sal

S.C. Stat. Ann. § 48-39- 290 (Law. Co-op. Supp.

RSE se ae a a

S.C. Stat. Ann. ¢ 48. 39- 290 (6) (i)- (v) (Law.

Co-op. Supp. 1990) fa nee se

Tex. Nat. Res. Code Ann. §§ 33.001-33.176 (Ver-

non 1978 & Supp. 1992)

Va. Code Ann. £ 62.1-13.21 to 62.1- 13.28 (1987 &

Supp. 1991)

11, 25

viii

TABLE OF AUTHORITIES—Continued

Page

Wash. Rev. Code Ann. &§ 43.51.650-53.51.765

(West 1983 & Supp. 1991) . 3

Wis. Stat. Ann. § 59.971 (1991) ........ pant 3

RESTATEMENT

Restatement (Second) of Torts (1979)

i ssa ae «

OS ~

LAW REVIEW ARTICLES

Guido Calabresi and A. Douglas Melamed, Prop-

erty Rules, Liability Rules, and Inalienability:

One View of the Cathedral, 85 Harv. L. Rev.

I 9

Dennis J. Hwang, Shoreline Setback Regulations

and the Takings Analysis, 13 U. Haw. L. Rev. 1

a SEE A ARS OS SE SE SA Se Ce nae 18

Jeff L. Lewin, Boomer end the American Law of

Nuisance: Past, Present, and Future, 54 Alb.

L. Rev. 189 (1990) .. ie

Frank I. Michelman, Property, Utility, and Fair-

ness: Comments on the Ethical Foundations of

“Just Compensation” Law, 80 Harv. L. Rev.

1165 (1967) 13

Natasha Zalkin, Shifting Sands and Shifting Doe-

trines: The Supreme Court's Changing Takings

Doctrine and South Carolina’s Coastal Zone

Statutes, 79 Cal. L. Rev. 205 (1991) _. oe 19

OTHER AUTHORITIES

H. Crane Miller, Hurricane Hugo: Learning from

South Carolina (1990). reprinted in Coastal

Erosion and Erosion Management: Hearing

hefore the Subcomm. on Policy Research and

Insurance of the House Comm. on Banking,

Finance and Urban Affairs, 101st Cong., 2nd

Sess. 224-83 (1999) 11-12

William J. Neal, ef el., Living with the South

Carolina Shore (1984) 18,19

TABLE OF AUTHORITIE..—Continued

. age

National Research Council, Managing Coastal

Erosion (1990) . . 12,19

David W. Owens, W here Erosion and Development

Meet, EPA Journal Sept.-Oct. 1989 tk 18

Rutherford H. Platt, et al., The Folly at Folly

Beach and Other Failings of U.S. Coastal

Erosion Policy, 33 Env’t 7 (Nov. 1991) ; 18

W. Rodgers, Environmental Law (1986)

IN THE

Supreme Cort of the United States

OCTOBER TERM, 1991

No. 91-443

Davin H. LUCAS,

Petitioner,

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

On Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF THE

U.S. CONFERENCE OF MAYORS,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL CONFERENCE OF

STATE LEGISLATURES, NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS, AND NATIONAL LEAGUE

OF CITIES AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials through-

out the United States. Amici and their members have a

vital interest in the legal issues that affect the powers

and responsibilities of state and local covernments to

regulate land use in the public interest.

All states and local governments reguiate land use. To

give just one pertinent example, following enactment in

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

$§ 1451-1464 (West 1985 & Supp. 1991), every coastal

State passed legislation designed to protect its shoreline

from the hazards resulting from overdevelopment.’ Many

1 See Ala. Code §§ 9-7-10 to 9-7-20 (1987) (Preservation, Devel-

opment, Etc. of Coastal Areas’); Alaska Stat. $§ 46.40.10-46.40.210

(1991) (“The Alaska Coastal Management Program”); Cal. Pub.

Res. Code §§ 30000-30900 (West 1986 & Supp. 1991) (“The Califor-

nia Coastal Act of 1976”); Conn. Gen. Stat. Ann. §$§ 22a-90 to 22a-

113j (West 1985 & Supp. 1991) (“The Coastal Management Act”) ;

id. §§$ 25-69 to 25-102 (“Flood Control and Beach Erosion”) Del.

Code Ann. tit. 7, §§ 7001-7013 (1991) (“Coastal Zone Act’) id. 6801-

6812 (“Beach Preservation”); Fla. Stat. Ann. §§ 161.001-161.58

(“Beach and Shore Preservation Act’’) ; id. §§ 380.19-380.28 (West

1988 & Supp. 1991) (‘Florida Coastal Planning and Management Act

of 1978"); Ga. Code Ann. §§ 12-5-210 to 12-5-246 (1991) (“Shore

Assistance Act of 1979’); Haw. Rev. Stat. §§ 205A-1 to 205A-49

(1988 & Supp. 1991) (“Coastal Zone Management”); La. Rev. Stat.

Ann. §§ 49:213.1-49 :214.41 (West. 1987 & Supp. 1991) (“Louisiana

Coastal Wetlands Conservation, Restoration, and Management’’) ;

Me. Rev. Stat. Ann. tit. 38, §§ 480A-490 (1989 & Supp. 1991) (“Pro-

tection of Natural Resources” and “Site Location of Development”) ;

id. tit. 38, $$ 1801-1905 (“Coastal Management Policies” and

“Coastal Barrier Resource System”); Md. Nat. Res. Code Ann.

§§ 8-1001 to 8-1105-1 (1990 & Supp. 1991) (“Shore Erosion Control”’

and “Beach Erosion Control and Replenishment”) ; Mass. Gen, Laws

Ann. ch. 21A, § 4A (West Supp. 1991) (“Coastal Zone Management

Office’) ; Miss. Code Ann. §§ 49-27-1 to 49-27-69 (1990) (“Coastal

Wetlands Protection Law’) ; N.H. Rev. Stat. Ann. §§ 482-A:1 to 482-

A:27 (Supp. 1990) (“Fill and Dredge in Wetlands”); N.J. Stat.

Ann. §§ 13:19-1 to 13:19-21 (West 1979 & Supp. 1990) (“Coastal

Area Facility Review Act’) ; N.Y. Envtl. Conserv. Law § 34-0101 to

34-0113 (McKinney 1984 & Supp. 1992) (‘Coastal Erosion Hazard

Areas”); N.C. Gen. Stat. §§113A-100 to 113A-134.3 (1991)

(“Coastal Area Management Act of 1974"’) ; Or. Rey. Stat. $$ 196.105-

196.990 (1991) (“Wetlands and Rovers; Removal and Fill; Ocean

Resources Planning’’) ; R.I. Gen. Laws §§ 46-23-1 to 46-23-21 (1991)

(“Coastal Resources Management Council”): S.C. Code Ann. §§ 48-

39-10 to 48-39-360 (Law. Co-op. 1987 & Supp. 1990) (“Coastal Tide-

lands and Wetlands”); Tex. Nat. Res. Code Ann. §§ 93.001-33.176

(Vernon 1978 & Supp. 1992) (“Coastal Public Lands Management

of these statutes specifically address the problem of

beach dune erosion and establish “setbacks” beyond

which new construction is generally prohibited.”

Defining “property” interests and serious public harms

constituting “nuisances” traditionally has fallen within

the province of state law. State and local governments

Act of 1973”); Va. Code Ann. §§ 62.1-13.21 to 62.1-13.28 (1987 &

Supp. 1991) (“Coastal Primary Sand Dune Protection Act’) ; Wash.

Rev. Code Ann. §§ 43.51.650-53.51.765 (West 1983 & Supp. 1991)

(“Seashore Conservation Area”).

See also Mich. Comp. Laws §§ 281.601-281.65la (West 1979 &

Supp. 1991) (“Protecting Beaches and Sand Dunes’’); Wis. Stat.

Ann. §$ 59.971 (1991) (“Zoning of Shorelands on Navigable

Waters’”’).

2 See, e.g., Conn. Gen. Stat. Ann. §$§ 22a-94, 22a-106 (West 1985

& Supp. 1990) (requiring permit for construction beyond coastal

boundary, which is either the 100 year flood frequency coastal flood

zone under the National Flood Insurance Act or a 1,000 foot linear

setback from the mean high water mark); Del. Code Ann. tit. 7,

§§ 6802, 6805 (1991) (requiring establishment of “building” line

beyond which construction is prohibited without permit) ; Haw. Rev.

Stat. §§ 205A-41 to 205A-49 (1988 & Supp. 1991) (shoreline setback

policy established to prevent future construction within the “shore-

line setback zone,” set between 20 and 40 feet inland from the mean

high tide line) ; Me. Rev. Stat. Ann. tit. 38, $$ 435, 439-A(4) (1989

& Supp. 1991) (prohibiting new structures or “substantial expan-

sion” [more than 30%] of existing ones within 250 feet of the

normal high water line); Md. Nat. Res. Code Ann. §§ 8-1102, 8-

1105.1 (1990 & Supp. 1991) (prohibiting construction within the

Beach Erosion Control District, coinciding in general with the west

crest of the existing dune); N.J. Stat. Ann. § 13:19-5 (West 1979

& Supp. 1990) (prohibiting construction without a permit in coastal

area); N.Y. Envtl. Conserv. Law § 34-0108(3)(a) (McKinney 1984

& Supp. 1992) (Commissioner must establish minimum setback

requirement for structures) ; N.C. Gen. Stat. §§ 113A-113(b) (6) (a),

113A-120(a)‘6) (1991) (Coastal Commission to designate areas of

environmental concern, including natural-hazard areas such as “sand

dunes along the Outer Bank,” and to deny permits in such areas

where development would “unreasonably endanger life or prop-

erty”); S.C. Stat. Ann. § 48-39-2990 (Law Co-op. Supp. 1990) (no

new structures may be constructed in defined coastal zones subject

to certain exceptions).

could be seriously disrupted by a departure from the

“nuisance” exception or multi-factor test repeatedly ap-

plied by the Court to takings claims.

Because this Court’s decision will have a substantial

effect on matters of great importance to amici and their

members, amici submit this brief to assist the Court in

its resolution of the case."

SUMMARY OF ARGUMENT

Federal courts should exercise restraint in their re-

view of claims that state land use regulations constitute

takings. As suggested by several decisions of this Court,

findings of Takings Clause violations based on state en-

actments should be made only when “fairness and justice”

so require.

A. The Court should not imbue the term “property”

with some federal or natural law meaning. The Court

cannot find that state regulation effects a taking of prop-

erty without superimposing on state law some baseline

for property rights that the State already has explicitly

or implicitly rejected by adopting and sustaining the reg-

ulation. It is just this subjective preference in Constitu-

tional rulemaking that the Court has repeatedly warned

against in insisting that property rights are created by

state law.

B. Petitioner’s suggestion that federal courts should

exercise de novo review over state judgments that certain

land uses constitute nuisances would violate longstanding

principles of federalism. In view of the lack of consensus

concerning what activities constitute a nuisance, such re-

view of necessity would involve intrusive disagreements

with state courts’ or legislatures’ evaluations of the harms

3 The parties’ letters of consent have been filed with the Clerk pur

suant to Rule 27.3 of this Court.

and benefits of different activities. In addition, any at-

tempt by this Court to “federalize” an objective standard

of harmful or nuisance-like property uses likely would

stunt the careful evolution of the common law in re-

sponse to, among other things, changing scientific under-

standing of the physical interrelationship between once

seemingly distinct activities.

For similar reasons, the Court should not be quick to

second-guess a state legislative, executive or judicial de-

termination that a particular police measure is needed to

avoid serious injury to public health and welfare. Here,

the South Carolina legislature and respondent possess far

more expertise than does this Court regarding the pecu-

liar risks caused by construction on fragile areas of the

South Carolina coast.

II.

A. Petitioner’s request of this Court to abandon the

“nuisance” exception to the Takings Clause should be

rejected. The “nuisance” exception stands for the simple

proposition that a State may prohibit uses of property

that are harmful to the community because such uses

are not included in ownership rights. The nature of the

harm against which the South Carolina statute is directed

is well within the class of harms contemplated by this

Court in cases applying the “nuisance” exception.

The legislature of South Carolina is intimately familiar

with the serious dangers to life and property that are

posed by erosion exacerbated by development too close to

the shoreline. The Beachfront Management Act explicitly

recognizes these harms and also makes clear the close

connection between the prevention of beach erosion and

the Act’s ultimate purpose of protecting life and property.

B. Petitioner’s claim that loss of economic viability

may result in a finding of an unconstitutional taking

without regard to the other factors used by this Court

to analyze takings claims also is without merit. Every

takings case decided by this Court has properly inquired

into the nature of the government’s action.

Here, in view of the compelling state purpose, the

statute does not work an unconstitutional taking when

analyzed under the “multi-factor” test. Neither the eco-

nomic impact nor the effect on petitioner’s “reasonable

investment-backed expectations” outweighs the govern-

ment’s purpose.

C. The only issue petitioner put to the courts below

was whether the deprivation of all economically viable

use necessarily constituted a taking. The Supreme Court

of South Carolina properly rejected this extreme view.

Petitioner’s failure to challenge the statute’s purpose or

methodology in the state courts requires affirmance of the

decision below on this ground as well.

ARGUMENT

I. SOUND PRINCIPLES OF FEDERALISM COUNSEL

RESTRAINT IN REVIEWING CLAIMS THAT

STATE LAND USE REGULATIONS CONSTITUTE

TAKINGS.

Well-settled principles of federalism counsel restraint

in applying federal law notions of property and nuisance

to South Carolina’s Beachfront Management Act.

A. This Court Properly Looks to State Law to Define

Property Rights.

In this case the South Carolina legislature, respondent

(a South Carolina administrative agency), and the South

Carolina Supreme Court agreed that South Carolina prop-

erty rights do not include the right to build a permanent

structure seaward of a scientifically drawn erosion base-

line because doing so causes severe public harm. A con-

trary determination by this Court would necessarily rest

on a ruling that land ownership in South Carolina does

include this right of hazardous construction. The only

available sources for this conclusion are the opinions of

the members of this Court about what ideal property

rights should embrace. But it is just this subjective pref-

erence in Constitutional rulemaking that the Court has

repeatedly warned against in insisting that property

rights are created by state law.

In rejecting numerous pleas to expand federal protec-

tion of property rights, the Court properly has insisted

that property rights are created and defined by state law.

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980):

Bishop v. Wood, 426 U.S. 341, 344 (1976). The federal

Constitution itself does not engender any property rights.

Paul v. Davis, 424 U.S. 693 (1976); Board of Regents

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

In PruneYard, owners of a shopping center open to the

public challenged, on Just Compensation Clause grounds,

a provision of the California constitution that permitted

individuals to exercise free speech rights on the shopping

center premises. In concluding that there was no uncon-

stitutional taking, the Court distinguished the facts in

PruneYard from the federal government’s actions in

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

the ground that “the United States, as opposed to the

several States, |is not] possessed of residual authority

that enables it to define ‘property’ in the first instance.”

447 U.S. at 84 ‘emphasis added). In so holding, the

Court indicated the necessity of affording the States

greater leeway than the federal government in the field

of land use regulation.

As the Court also observed in PruneYard, “{a} State

is, of course, bound by the Just Compensation Clause of

the Fifth Amendment.” Jd. A State may not manipulate

the contours of property law so as to eviscerate the pro-

tections afforded by this 4or any other) Constitutional

provision. Nevertheless, in determining whether certain

interests constitute “property” for purposes of the Con-

stitution, this Court is “mindful of the basic axiom that

*“{plroperty interests ... are not created by the Consti-

tution. Rather, they are created and their dimensions are

defined by existing rules or understandings that stem

from an independent source such as state law.”’”

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984)

(citations omitted). See also Keystone Bituminous Coal

Ass’n v. DeBenedictis, 480 U.S. 470, 518-19 (1987)

(Rehnquist, C.J., dissenting) (“We have evaluated tak-

ings claims by reference to the units of property defined

by state law.”). Thus, while a concern for the States’ role

in defining property rights does not deprive the Court of

a role in assessing the fairness of state land use rules, it

plainly counsels judicial restraint. As suggested in

PruneYard itself, findings of Takings Clause violations

based on state enactments should be made only when

“fairness and justice” so require. 447 U.S. at 83. See

also Armstrong v. United States, 364 U.S. 40, 49 (1960).

B. The Formulation of Laws Addressing Harmful,

Nuisance-Like Uses of Property Is Best Left to

The States.

Petitioner argues (Br. 11) that there should be an

“objective” federal definition of nuisance-like harms for

purposes of Takings Clause litigation. Adoption of such

an unprecedented rule would violate long established prin-

ciples of federalism in several respects.

Given the variations among the States in defining

nuisance, adoption of a federal standard would displace

state decisionmaking at the core of its traditional power

to define property rights and recognize tort actions. A

leading authority describes nuisance as an area of law

that “straddles the legal universe, virtually defies syn-

thesis, and generates case law to suit every taste.”

W. Rodgers, Environmental Law § 2.4, at 48 (1986).

Indeed, the “clearest” statement of nuisance, the Restate-

ment (Second) of Torts, defines an actionable nuisance

as the intentional and unreasonable invasion of another's

interest in property (Section 822) and then provides (in

Section 826) :

An intentional invasion of another’s interest in the

use and enjoyment of land is unreasonable if

(a) the gravity of the harm outweighs the utility

of the actor’s conduct, or

(b) the harm caused by the conduct is serious

and the financial burden of compensating for this

and similar harm to others would not make the con-

tinuation cf the conduct not feasible.*

Obviously, any dispute will require a court to make loosely

guided policy judgments about the comparative magni-

tudes of harms and benefits of the parties’ uses of land.

See Guido Calabresi and A. Douglas Melamed, Property

Rules, Liability Rules, and Inalienability: One View of

the Cathedral, 85 Harv. L. Rev. 1089 (1972). Federal

court review thus could not be “objective,” but of neces-

sity would involve intrusive disagreements with state

courts’ or legislatures’ evaluations of the harms and bene-

fits of different activities.

Further, the strength of the Nation’s common law tra-

dition lies in its contextual application, which partly ex-

plains our historical reliance on state law and state courts

for its formation. Local determinations are naturally

more appropriate for the site-specific and value-laden

judgments inherent in the fashioning of nuisance law.

As described by the Court in Village of Euclid v. Ambler

Realty Co., 272 U.S. 365, 388 (1926), “whether a par-

ticular thing is a nuisance is to be determined, not by an

abstract consideration of the building or of the thing

considered apart, but by considering it in Connection with

the circumstances and the locality. .. . A nuisance may

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

the parlor instead of the barnyard.”

* Fifteen States have adopted the broad formulation of “unreason-

ableness” of the Restatement, while virtually all the others employ

even vaguer standards that require courts to determine if the de-

fendant’s conduct and/or the plaintiff's losses are unreasonable

“under all the circumstances.” Jeff L. Lewin, Boomer and the

American Law of Nuisance: Past, Present, and Future, 54 Alb. L.

Rev. 189, 234-35 (1990).

For this reason, petitioner’s asserted belief (Br. 44)

that a residential home cannot be a nuisance is entirely

misguided. To be sure, in most places construction of a

residential home would not present dangers to human

health and safety. But the fragile, ever-shifting ground

near the shoreline is not like most places. There, residen-

tial homes, like other permanent structures, present acute

risks. That their purpose is residential does not render

them somehow immune from the physical mechanics of

the coastal zone. In short, a residential home may well be

a “right thing,” but that fact does not obviate the possi-

bility that the physical characteristics of certain proper-

ties may render them the “wrong place” for its location.

More generally, the fact that the definition of an activity

as a nuisance depends so heavily on the context renders

illusory the notion of an objective federal standard for

nuisance.

Drawing on state sources of nuisance law in the resolu-

tion of takings cases is not only necessary, it is also a

salutary feature of the common law tradition. It is essen-

tial for the life of the common law that States remain

free to determine for themselves what kinds of risks will

be tolerated under tort-like standards. See Gregory v.

Ashcroft, 111 S. Ct. 2395, 2399 (1991) (the “federalist

structure of joint sovereigns .. . allows for more innova-

tion and experimentation in government”): New State

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting) (“[i]t is one of the happy incidents of

the federal system that a single courageous state may,

if its citizens choose, serve as a laboratory; and try novel

social and economic experiments without risk to the rest

of the country”). Any attempt by this Court to “federal-

ize” an objective standard of nuisance-like harms for

purposes of takings litigation likely would stunt the care-

ful evolution of the common law.

For similar reasons, the Court should not be quick to

second guess a state legislative, administrative, or judicial

determination that a particular police power measure is

needed to avoid serious injury to public health and wel-

fare.” Here, the South Carolina legislature as well as

respondent South Carolina Coastai Council have had far

more experience, and possess far more expertise, than

does this Court regarding the peculiar risks caused by

construction on fragile areas of the South Carolina coast."

South Carolina has had to deal with the personal tragedy

associated with unwise development in those areas.’

® See, ¢.g., Ruckelshaus v. Monsanto Co., 467 U.S. at 1007; id. at

1014 (“|tjhe role of the courts in second-guessing the legislature's

judgment of what constitutes a public use is extremely narrow”) ;

id. at 1016 n.18 (“[ojur review is limited to determining that the

purpose is legitimate and that Congress rationally could have be-

lieved that the provisions would promote that objective”) ; Hawaii

Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (citations omitted )

(“the Court has made clear that it will not substitute its judgment

for a legislature’s judgment as to what constitutes a public use

‘unless the use be palpably without reasonable foundation’ ”) ;

Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928) (“we should

not be warranted in substituting our judgment for that of the zoning

authorities primarily charged with the duty and responsibility of

determining the question”); Miller v. Schoene, 272 U.S. 272, 279

(1928) (“[w]hen forced to such a choice the state does not exceed

its constitutional powers by deciding upon the destruction of one

class of property in order to save another which, in the judgment of

the legislature, is of greater value to the public’).

* See S.C. Beachfront Management Act, 1988 Act No. 634, codified

at S.C, Code Ann. §§ 48-39-10 et seq. (Law. Co-op. Supp. 1990), as

amended by 1990 Act No. 6607; S.C. Coastal Zone Management Act

1977 Act No. 123, codified at S.C. Code Ann. §§ 48-39-10 et seq.

(Law. Co-op. 1987). After 11 years of experience, and following

the advice of a specially-appointed Blue Ribbén Committee, the

South Carolina Legislature concluded that the 1977 Act “did not

provide adequate jurisdiction to the South Carolina Coastal Council

to enable it to effectively protect the integrity of the beach/dune

system.” S.C. Code Ann. § 48-39-250(4) (Law. Co-op. Supp. 1990).

7 See H. Crane Miller, Hurricane Hugo: Learning From South

Carolina (1990) reprinted in Coastal Erosion and Erosion Manage-

ment: Hearing before the Subcomm. on Policy Research and Insur-

ance of the House Comm. on Banking, Finance and Urban Affairs,

lvlst Cong., 2d Sess. 234-83 (1990) (“Miller”) at 39-40.

States such as South Carolina have been compelled to

expend massive sums of monies literaily to rescue per-

sons, such as petitioner, from the dangers posed by sub-

stantial development close to the ocean.* Indeed, South

Carolina is only one of many coastal States that have

adopted laws regulating beachfront development, includ-

ing the prohibition of building in areas judged to be at

too great an erosion risk. See notes 1-2, supra.’

It is also appropriate for the Court to exercise re-

straint because property owners are not a discrete and

insular minority unable to protect their interests in the

state political process. Indeed, South Carolina’s respect

for property rights is evidenced by the fact that the 1958

Act exempted existing construction from its setback re-

quirements. S.C. Stat. Ann. 48-39-290(6) (i)-(v) (Law.

Co-op. Supp. 1990). The 1990 Amendments likewise evi-

dence the State’s sensitivity to property rights.’°

This Court has long wisely declined an active role in

state land use decisions. In only two cases—both decided

in the 1920’s—-has the Court found takings where state

law regulated land use without effecting a physical inva-

sion. In Nectow, the Court found violative of due process

a zoning ordinance that severely reduced the value of the

plaintiff's property for no stated or apparent public pur-

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

* Miller at 25-27, 42 (describing the South Carolina Windstorm

Insurance Program).

*The National Research Council has recommended adoption

throughout the Nation of minimum state standards for coastal

development. Standards urged by NRC include a prohibition on

construction within the 10 year erosion zone and permitting onlx—

readily movable structures within the 60 year erosion zone. Na-

tional Research Council, Managing Coastal Erosion 6-7 (1990).

In view of petitioner’s failure to avail himself of the rights

afforded by the 1990 amendments, amici agree with respondent that,

as an alternative to affirmance, the Court could dismiss the petition

as improvidently granted or remand the case as not ripe for review.