# 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

\ | 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

I.

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
ee

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
LS

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)

13

13

13

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

vi
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

11

2
20
19
20
20

3

12

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

ix

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,
v.

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.

2

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

3

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).

A

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

I.

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.

5

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

6

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

7

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-

8

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) :

9

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).

10

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

11

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.

12

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.
See also US. Br. 8-10.

13

(1922), reflects the Court’s concern about the unfairness
of legislation freely transferring to surface owners the
very property right to support that they had conveyed to
mineral owners in prior bargaining. These opinions
eschew mechanical rules in favor of broad principles capa-
ble of supporting open ended inquiries into the funda-
mental fairness of the State’s law. See Frank I. Michel-
man, Property, Utility, and Fairness: Comments on the
Kthical Foundations of “Just Compensation” Law, 80
Harv. L. Rev. 1165 (1967). Petitioner’s treatment of
isolated statements in these cases as independent, per se
federal law requirements for state land use initiatives is
seriously mistaken."

Il. WHETHER ANALYZED UNDER THE “NUISANCE”
EXCEPTION OR THIS COURT'S MULTI-FACTOR
TEST, THE APPLICATION OF SOUTH CARO-
LINA’S BEACHFRONT MANAGEMENT ACT TO
PETITIONER’S PROPERTY PASSES CONSTITU-
TIONAL MUSTER.

A. The Harm Against Which The Beachfront Manage-
ment 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 Eco-
nomic Viability Remains.

Petitioner asks the Court to disavow a principle that
has been an integral part of its takings jurisprudence
for more than a century. The central place that the so-

' Nollan v. California Coastal Commission, 48% U.S. 825 (1987),
involved a permanent physical occupation. See id. at ®32, quoting
Loretto v. Teleprompter Manhattan CATV Corp., 458% U.S. 419, 422-
33 n9 (1982). Because this case does not involve a permanent
physical occupation of petitioner’s property, Nollan is inapplicable.
Nonetheless, Nollan supports this emphasis on fundamental fairness
since the Court focused on the lack of any connection between the
State’s proclaimed goals and its chosen means, and voiced concern
that the means amounted to unjust “extortion.” 483 U.S. at 837.

14

called “nuisance” exception occupies in takings law, how-
ever, is due not only to its historicity, but also to the
significant function that it serves. As this Court has
recognized, one of the highest purposes for which govern-
ment is organized is the protection of the safety and
health of its citizens. See Mugler v. Kansas, 123 U.S.
623, 684-85 (1887). The “nuisance” exception embodies
the recognition that the Just Compensation Clause in no
way jeopardizes the government’s observance of this fun-
damental duty towards its citizens. The exception simply
provides that the protection of the public safety and
health does not depend upon the ability of the public
purse to compensate individuals who use their property
to harm the public. Moreover, the “nuisance” exception
does not weaken the protections of the Fifth Amend-
ment “since no individual has a right to use his property
to create a nuisance or otherwise harm others” and there-
fore “the State has not ‘taken’ anything when it asserts
its power to enjoin the nuisance-like activity.” Keystone,
480 U.S. at 491 n.20.

Numerous cases since Mugler have upheld this essential]
power of state legislatures or local governments to pro-
hibit uses of property that harm others. See, e.g., Key-
stone, 480 U.S. at 490-91; Goldblatt v. Town of Hemp-
stead, 369 U.S. 590 (1962); Miller v. Schoene, 276 U.S.
272: Zahn v. Board of Pub. Works, 274 U.S. 325 (1927):
Village of Euclid v. Ambler Realty Co., 272 U.S. 365;
Hadacheck v. Sebastian, 239 U.S. 394 (1915); Reinman
v. City of Little Rock, 237 U.S. 171 (1915); Powell v.
Pennsylvania, 127 U.S. 678 (1888); see also Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 144
(1978) (Rehnquist, J., dissenting) (“[a]s early as 1887,
the Court recognized that the 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’).

To be sure, “!t]he nuisance exception... is not co-
terminous with the police power itself.” Keystone, 480

15

U.S. at 491 n.20 (citation omitted). Thus, even amici,
who are dependent upon the principle for the power ef-
fectively to govern, recognize that it has limits. Indeed,
we generally concur in the United States’ assertion (Br.
18-19) that the greater part of the regulatory measures
coming within the exception wiil be those “designed to
protect public health and safety from serious harm”
rather than those that seek to “confer a benefit on ad-
jacent property owners or the public at large.” '*

12 While this distinction may have a degree of utility as a narrow-
ing principle, the decisions of this Court do not support the view
that it furnishes an invariable definition of which regulatory meas-
ures qualify for the “nuisance” exception. Among the decisions that
fail to adhere to the United States’ proposed rule is Chicago, B. & O.
R. Co. v. Illinois, 200 U.S. 561 (1906). In that case, the Court was
presented with the argument, remarkably similar to that now ad-
vanced, that the Court’s “adjudications relating to the police power
of the state to protect the public health, the public morals, and the
public safety are not applicable, in principle, to cases where the
police power is exerted for the general well-being of the community
apart from any question of the public health, the public morals, or
the public safety.” Id. at 592. The state action in question was a
program designed to secure for the community additional tillable
lands fit for agriculture. Jd. Notwithstanding the argument that
the measure did not have “anything to do with the health” of the
community, Justice Harlan, writing for the Court, rejected the
property owner’s position that a “taking” had occurred. Id. Because
the State’s action was designed to “promote the public convenience
or the general prosperity,” the Court held that the exercise of such
power could not be conditioned upon compensation. Jd. at 592-93.

The Court has indicated in three other decisions that the United
States recognizes as consistent with “Mugler’s fundamental prin-
ciples” (Br. 16-17 n.11) that the regulatory restrictions in question
were based on the expectation of “widespread publie benefit” rather
than on “any supposed ‘noxious’ quality of the prohibited uses.” Sv:
Penn Cent., 438 U.S. at 134 n.30 (discussing Hadacheck, Miller ana
Goldblatt). Nevertheless, it is not necessary for purposes of this
case to decide whether the nuisance exception extends beyond the
“nrotectfion] of the public health and safety from serious harm”
since the South Carolina Beachfront Management Act easily satisfies
even that standard. See discussion infra at 18-20.

16

Nevertheless, while the “nuisance” exception does not
extend to the limits of a state’s police power, it would be
irrational to restrict it to measures that prohibit only
common law nuisances. Common law nuisance cases ad-
dress harms imposed by one landowner on his neighbor,
whereas police power legislation also can prevent serious
harm caused by many landowners, even when the harm
is spread over so many people that no one neighbor may
have sufficient incentive to bring a nuisance suit.’* In
addition, common law judges lack the expertise effectively
to address pervasive, scientifically complex harms to the
public within the context of private litigation." If the
Court were now to narrow the category of police power
legislation immune from Takings Clause challenges to
abatement of common law nuisances,’ it would seriously
hamper States in addressing innumerable environmental
problems that threaten public health and safety.

Furthermore, contrary to petitioner’s suggestion (Br.
20-28), this Court has recognized repeatedly that gov-
ernment may enact laws that result in the “destruction”
of private property. See, e.g., Penn Central, 488 U.S. at

'S For example, in the classic case of Boomer v. Atlantie Cement
Co., 257 N.E.2d 870, 873 (N.Y. 1970), the court refused to enjoin
air pollution by a defendant in a nuisance suit on the ground that
the complexities of reducing air pollution ought to be left to the
legislature, which could weigh the costs and benefits of differing
rules for society as a whole in light of extensive scientific evidence.

4 “TN Juisance law could not adequately respond to the problems
of air and water pollution. Informational, procedural, and financial
barriers would preclude most affected parties from bringing nuisance
suits against pervasive nuisances with widespread impact on the
zeneral public health and welfare. . . . Due to its inherent limita-
tions, nuisance law generally has been relegated to marginal cases,
involving small-scale, localized land use conflicts.” Lewin, supra, 54
Alb. L. Rev. at 229-30.

The Court, of course, has never done so. The brewery closed
in Mugler was not itself a common law nuisance; the Court there
upheld a state constitutional amendment that reflected a democratic
judgment about the social harms of alcoholic beverages. -

17

125, citing Nectow v. City of Cambridge, 277 U.S. 183
(“in instances in which a state tribunal reasonably con-
cluded that ‘the health, safety, morals, or general wel-
fare’ would be promoted by prohibiting particular con-
templated uses of land, this Court has upheld land-use
regulations that destroyed oy adversely affected recog-
nized real property interests” ) ‘emphasis added); Miller
v. Schoene, 276 U.S. at 280 (“preferment of [the public
interest] over the property interest of the individual, to
the extent even of its destruction, is one of the distinguish-
ing characteristics of every exercise of the police power
that affects property”) (emphasis added); Omnia Com-
mercial Co. v. United States, 261 U.S. 502, 508 (1923)
(“destruction of, or injury to, property is frequently ac-
complished without a ‘taking’ in the constitutional
sense”); Mugler v. Kansas, 123 U.S at 669 (“the destrue-
tion of property which is itself a public nuisance . . . is
very different from taking property for public use’):
see also Penn Central, 438 U.S. at 144 (Rehnquist, J.,
dissenting) (describing the “nuisance” exception as one of
“the two exceptions where the destruction of property
does not constitute a taking’).

In Powell v. Pennsylvania, 127 U.S. 678, for example,
a party challenged, on Just Compensation grounds (127
U.S. at 687), legislation that prohibited his manufacture
of oleomargarine, and offered to prove

that for the purpose of prosecuting that business
large investments were made by him in the purchase
of suitable real estate, in the erection of proper
buildings, and in the purchase of the necessary ma-
chinery and ingredients: that in his traffie in said
article he made large profits; and, if prevented from
continuing it, the value of his property employed
therein would be entirely lost, and he be deprived of
fhe means of livelihood,

Id. at 682 (emphasis added), Notwithstanding this claim,
the Court held that the “case, in its important aspects, is

18
governed by the principles announced in Mugler... .”
Id. at 683."°

2. The Beachfront Management Act’s Purpose Of
Protecting Lives And Property Satisfies the
“Nuisance” Exception.

Shore erosion presents difficult problems for jurisdic-
tions along tidal and Great Lakes shorelines. Currents
drive sand along the shore, keeping the beach area un-
stable.'* Absent extensive development, erosion is a na-
tural and harmless process of equilibrium between sand
and sea.'* With greatly intensified residential develop-
ment at the shore,'’ however, erosion can undermine and
sometimes destroy structures built too close to the beach,
at the same time exacerbating the vulnerability of coastal
development to flood damage from hurricanes and other

16 In Mugler itself, the Court characterized the brewery owners’
argument as follows:

[T]hat, as the primary and principal use of beer is as a bever-
age; as their respective breweries were erected when it was
lawful to engage in the manufacture of beer for every purpose ;
as such establishments will become of no value as property, or,
at least, will be materially diminished in value, if not employed
in the manufacture of beer for every purpose... .

1283 U.S. at 664 (emphasis added). Thus, in Mugler, the Court
acknowledged that the result of applying the “nuisance” exception
in the circumstances of that case could be the elimination of all
economic value of the property. In the Court’s view, however, such
a result was no obstacle to the enforcement of legislation “appro-
priate or needful for the protection of the public morals, the public
health, or the public safety.” Jd. at 661.

17 William J. Neal, et al., Living with the South Carolina Shore
35 (1984).

18 Dennis J. Hwang, Shoreline Setback Regulations and the Tak-
ings Analysis, 13 U. Haw. L. Rev. 1, 3-4 (1991).

19 Rutherford H. Platt, et al., The Folly at Folly Beach and Other
Failings Of U.S. Coastal Erosion Policy, 33 Env't 7, 8 (Nov. 1991).
See also David W. Owens, Where Erosion and Development Meet,
EPA Journal Sept.-Oct. 1989, at 44-45.

19

major storms.*® This causes not, only property loss, but
death and serious injury.*' Attempts to fortify shore-
lines against erosion through construction of sea walls,
groins and jetties require massive public expenditures
and often exacerbate erosion downcurrent from the proj-
ect.“* Construction that weakens dune structures also
accelerates erosion.** When losses occur through floods
and undermining, public authorities must provide ex-
pensive aid, both through emergency services and reim-
bursements from the publicly subsidized National Flood
Insurance Program, 42 U.S.C.A. §§ 4001-4128 (West
1977 & Supp. 1989), and disaster assistance relief through
the Federal Emergency Management Agency.

On the basis of such data, the legislature of South
Carolina reasonably determined that building-too close to
the ocean causes irreparable harm:

Erosion is a natural process which becomes a sig-
nificant problem for man only when structures are
erected in close proximity to the beach ‘dune system.
It is in both the public and private interests to afford
the beach ‘dune system space to accrete and erode in
its natural cycle. This space can be provided only by
discouraging new construction in close proximity to
the beach/dune system and encouraging those who
have erected structures too close to the system to
retreat from it.

S.C. Stat. Ann. § 48-39-250(6). Moreover, the statute
makes clear the close connection between the beach erosion
it seeks to prevent and its ultimate purpose of protecting

20 Natasha Zalkin, Shifting Sands and Shifting Doctrines: The
Supreme Court's Changing Takings Doctrine and South Carolina's
Coastal Zone Statute, 79 Cal. L. Rev. 205, 212 (1991).

21 Jd. at 213.

22 National Research Council, Managing Coastal Erosion, supra,
at 59-60.

23 Neal, supra, at 43-48.

EE ll DU|MUMUl lL

20

life and property. The beach/dune system, the Legisla-
ture found,

protects life and property by serving as a storm bar-
rier which dissipates wave energy and contributes to
shoreline stability in an economical and effective
manner;....

S.C. Stat. Ann. § 48-39-250(1) (a).

While the Act also acknowledges the significance of
the State’s coastline to the tourist industry, see S.C. Stat.
Ann. § 48-39-250(8), the Act’s “legislative findings”
($ 48-39-250) and “policy statement” (§ 48-39-260) am-
ply demonstrate that there is no basis for petitioner’s
assertion that “[{a]lthough the concern of beach erosion
harming private property is mentioned in the Act, ...
this appears to be a remotely-perceived harm.” Pet. 40.
Indeed, the first item mentioned in both statutory pro-
visions is the State’s primary goal of “protectling] life
and property.” See Pet. App. 98, 102.

In any event, the fact that the preservation of South
Carolina’s shoreline likely would have the additional! ef-
fect of aiding the State’s tourist industry provides no
basis for requiring compensation. The prohibition on
locating stables in the busiest part of Little Rock, Ar-
kansas, that was at issue in Reinman v. Little Rock, 237
U.S. 171 (1915), likely enhanced tourism in that City.
See id. at 174 (City averred that the regulated locality
“contain|ed] the largest and best hotels in the state” and
that “there is always an offensive odor coming from said
stables, to the great detriment of ... hotel guests”). That
additional factor, however, did not deter this Court from
concluding that no compensation was due the stable
owners to whose property the ordinance was applied.
There is no reason for a different result here.**

“4 Likewise, it is difficult to see the logic of the argument sug-
yested by the United States (Br. 20), which would accord signifi-
cance to the fact that a particular regulation might serve more than

21

B. The Beachfront Management Act Plainly Satisfies
This Court’s Multi-Factor Test.

1. This Court’s Multi-Factor Test By Definition
Takes Into Account More Than Remaining Eco-
nomic Viability Vel Non.

Petitioner claims that a regulation that prohibits a
landowner from building a permanent dwelling on his
property constitutes a taking solely because of its effect
on the property’s market value. However, as the Court
explained in Goldblatt v. Town of Hempstead, 369 U.S.
at 594 (citations omitted), “[a]lthough a comparison
of values before and after is relevant, . .. it is by no
means conclusive... .”

Instead, the Court has established a multi-factor an-
alysis, acknowledging that it

has generally “heen unable to develop any ‘set form-
ula’ for determining when ‘justice and fairness’ re-
quire that economic injuries caused by public action
be compensated by the government, rather than re-
main disproportionately concentrated on a few per-
sons.” Rather, it has examined the “taking” ques-
tion by engaging in essentially ad hoc, factual in-
quiries that have identified several factors—such as
the economic impact of the regulation, its interfer-
ence with reasonable investment backed expecta-
tions, and the character of the government action—
that have particular significance.

Keystone, 480 U.S. at 495 (citations omitted). “Many
cases before and since Pennsylvania Coal have recog-
nized that the nature of the State’s action is critical in
takings analysis.” Keystone, 480 U.S. at 488 (footnote
omitted}.

one purpose. If it is determined that a regulation does, indeed, bear
a rational relation to a valid health or safety purpose, the mere fact
that the same regulation may also have other benefits should not be
relevant.

22

Even Agins v. City of Tiburon, 477 U.S. 255 (1980),
much relied upon by petitioner (Br. at 15-16), states
that, “{a]lthough no precise rule determines when prop-
erty has been taken, the question necessarily requires a
weighing of private and public interests.” 447 U.S. at
260-61 (citations omitted). This Court has never in-
validated a regulation based solely on its effect on a
property’s economic viability under Agins.** Rather, in
every takings cases the Court properly examines the
goals and methodologies of the regulation. Indeed, in
PruneYard Shopping Center v. Robins, 447 U.S. at 83,
decided the day before Agins, the Court employed the
same multi-factor test that petitioner’s position would
require the Court to jettison.

2. The Compelling Public Interest That Is Served
By The South Carolina Statute Outweighs The
Other Two Factors Comprising The Multi-F actor
Test.

a. Character Of The Government Action.

This Court’s multi-factor test also is satisfied by the
Beachfront Management Act. The nature of the govern-
mental action in this case is compelling. See discussion

*5 Petitioner concedes (Br. 16) that “the Court has indicated that
the two-part Agins test should be used only in facial challenges of
regulations, while the three-prong Penn Central factors should be
reserved for cases in which a regulation is challenged as applied to
a certain parcel of land (as is true here).”

“6 Indeed, the Court has never invalidated a regulation solely be-
cause of no remaining economic viability. In United States v.
Lynah, 188 U.S. 445 (1903), this Court found that a taking for
which compensation was required had occurred where the govern-
ment’s obstruction of the natural flow of the Savannah River re-
sulted in the permanent flooding of a privately owned plantation
and the total destruction of its value. The Court has explained that
its decision in Lynah was the result of the fact that “a permanent
physical occupation” occurred in that case. See Loretto v. Tele-
prompter Manhattan CATV Corp., 458.U.S. at 428.

23

supra at 18-20. Neither of the other factors that com-
prise this test outweighs the substantiality of the State’s
purpose.
b. Reasonable Investment-Backed Expectations.
Contrary to petitioner’s claims, to provide a basis for
“reasonable investment-backed expectations,” significantly
more is required than passage of legislation like the 1977
Act, which applies generally to the South Carolina shore-
line, albeit in a less restrictive fashion than the 1988
Act. Rather, some sort of affirmative act by the gov-
ernment regarding the particular property in question is
required to justify reliance by the property owner.

For example, in Ruckelshaus v. Monsanto Co., 467 U.S.
986, the Court held that compensation might be required
where an applicant for registration of a pesticide sub-
mitted trade secret information to the EPA based on
statutory “explicit assurance” of non-disclosure. //. at
1011. In periods where the statute did not provide these
guarantees, no compensation was required. Jd. at
1006-07.

Similarly in Kaiser Aetna v. United States, 444 U.S.
164, a private property owner dredged the entrance to a
lagoon with the express approval of the Army Corps of
Engineers and with the expectation that the lagoon would
remain private. When the government declared the la-
goon to be a public waterway subject to a navigational
servitude, this Court found an unconstitutional taking.
Unlike Monsanto and Kaiser Aetna, there was no such
affirmative act by South Carolina in this case that could
give rise to any reasonable investment-backed ex»ecta-
tions on petitioner’s part.

c. Economic Viability.

As shown above (pp. 16-17, 21-22, supra}, petitioner's
contention that the economic impact of the regulation is
alone determinative is contrary to well-settled law. Even
if it were not, however, the trial court’s finding that

24

petitioner’s properties were rendered “valueless” (Pet.
App. 37) is not conclusive. The trial court focused solely
and mistakenly, on the highest and best use of petitioner’s
property, i.¢., the construction of habitable dwellings
thereon. See Goldblatt, 369 U.S. at 592 (‘if a regulation
“is otherwise a valid exercise of the [government’s]
police powers, the fact that it deprives the property of its
most beneficial use does not render it unconstitutional”).

s

The trial court erred by failing to consider the worth
of the remaining strands in petitioner’s bundle of prop-
erty rights. Keystone, 480 U.S. at 497. Specifically,
petitioner still can enjoy several other attributes of
ownership, including the right to exclude others, “one of
the most essential sticks in the bundle of rights that are
commonly characterized as property ....” Kaiser Actna,
444 U.S. at 176. Thus, he can enjoy the privacy and
solitude of a beachfront area that was considered so
valuable in Nollan v. California Coastal Commission, 483
U.S. 825. Petitioner can picnic, swim, camp in a tent or
live on the property in a moveable trailer. See Hall v.
Board of Envtl. Protection, 528 A.2d 453 (Me. 1987)
(despite denial of building permit, beneficial and valuable
uses of beachfront property remain, such as living in a
camper). Based on his right to exclude, petitioner can
charge others for the use of his beach. Petitioner also
retains the right to alienate the land, which would have
value for neighbors and for those prepared to enjoy
proximity to the ocean without a house.

Whether analyzing a limitation on the right to alienate,
to devise, to exclude, or most frequently, to use, this Court
has never focused solely on the diminution in value of
only one portion of the property’s value.** To do so would
allow challenges to regulations that affect increasingly

27 Cf. Hodel v. Irving, 481 U.S. 704 (1987) (total abolition of
right of descent.and devise found a taking where the government's
purpose of consolidating increasingly divided Indian lands was not
accomplished by the regulation).

25

subdivided property interests. Indeed, if petitioner's
theory that a deprivation of all economic viability auto-
matically works a taking were combined with the trial
court’s bundle-splitting view of what constitutes the
property taken, virtually any regulation would be sub-
ject to challenre on the ground that the government had
deprived a property owner of all economic use of some
strand of his property that deserves separate recogni-
tion. This Court wisely has never endorsed such a view.

C. Petitioner’s Sole Reliance On A “Finding” Of No
Remaining Economic Viability Alone Provides A
Basis For Affirming The Decision Below.

Petitioner chose not to question the statute in either
of the South Carolina courts, relying instead solely on
diminished “economic viability.” ** Given that the Court
always has insisted that constitutional inquiry in this
area requires consideration of the gravity of the public
harm being addressed as well as the loss sustained by
the owner, petitioner’s concessions compel the Court to
rule for respondent.** The burden of proof applicable to

** See Pet. App. 4 (“[petitioner] admittedly fails to attack the
validity of the Act, and therefore concedes the validity of the lewisla-
tive declaration of its ‘findings’ and ‘policy’ embodied in Sections 1
and 2 of 1988 Act No. 634") (footnote omitted); id. at 9 (“[peti-
tioner] maintains that if a regulation eperates to deprive a land-
owner of ‘all economically viable use’ of his property, it has worked
a ‘taking’ for which compensation is due, regardless of any other
consideration”) (emphasis added); id. at 35 (“[petitioner’s| com-
plaint does not challenge the constitutionality of the Beachfront
Management Act, nor does it challenge the right of the General
Assembly to regulate the use of his property”).

** The United States urges the Court to remand the case to permit
the South Carolina courts to assess the degree of public harm pre-
sented by the statute and balance this against the loss to petitione:

but the South Carolina Supreme Court proceeded as it did beeaus
petitioner insisted that these considerations were immateral. Given
the applicable burden of proof and the presumption of regularity

26

takings challenges and the- presumption of regularity
afforded democratic state decisionmaking require this
conclusion.

In order to evaluate the landowners’ takings claim in
Goldblatt v. Town of Hempstead, the Court explained that
it “need[ed] to know such things as the nature of the
menace against which [the ordinance] will protect, the
availability and effectiveness of other less drastic protec-
tive steps, and the loss which [the owners] will suffer
from the imposition of the ordinance.” 369 U.S. at 595.
Because of the “dearth of relevant evidence on these
points” (id.), the Court rejected the landowners’ chal-
lenge. Id. at 596 (“[olur past cases leave no doubt that
appellants had the burden on ‘reasor.ableness’ ”). See also
Keystone, 480 U.S. at 485 (property owners “have not
satisfied their burden of showing that the Subsidence Act
constitutes a taking”).

The Supreme Court of South Carolina, absent chal-
lenge by petitioner, correctly presumed the validity of
the statute’s purpose and the methodology for accomplish-
ing that purpose. Simply put, “debatable questions as
to reasonableness are not for the courts but for the Legis-
lature.” Goldblatt, 369 U.S. at 595 (citation omitted).
See also cases cited in note 5, supra. This presump-
tion in favor of validity places the burden of challenging
the statute squarely on petitioner. Petitioner failed to
carry that burden.

that attaches to all validly enacted state legislation, the Court should
affirm the decision below.

Although we believe that affirmance is required on this ground,
we do not agree with the South Carolina Supreme Court’s view
that because petitioner conceded that the statute was a valid exercise
of the police power he necessarily also conceded nuisance. As dis-
cussed above (pp. 14-15, supra), the nuisance exception is not
coterminus with the State’s exercise of its police power.

27

CONCLUSION

The judgment of the Supreme Court of South Carolina
should be affirmed.

Respectfully submitted,

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

February 3, 1992

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0184%3A33. Public record. Not legal advice.