Amicus Curiae Brief — Lucas v. South Carolina Coastal Council

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JAN 31 1992.

No. 91-453 OFFICE OF THE CLLRK

In The a

Supreme Court of the United States

October Term, 1991

DAVID H. LUCAS,

Petitioner,

v.

SOUTH CAROLINA COASTAL COUNCIL,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

Brief of the States of

Florida, Alabama, Connecticut, Delaware, Georgia, Hawaii,

Iowa, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Nevada, New Jersey, New Mexico, New

Hampshire, New York, North Carolina, Oregon,

Pennsylvania, Rhode Island and the Rhode Island Coastal

Resources Commission, Utah, Vermont, Virginia, Wisconsin,

Texas, and the Territory of Guam and Commonwealth of

Puerto Rico as Amici Curiae in Support of Respondent

ROBERT A. BUTTERWORTH

Attorney General of Florida

LOUIS F. HUBENER

Counsel of Record

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol — Suite 1502

Tallahassee, FL 32399-1050

(904) 488-9935

Attorneys for Amicus Curiae

State of Florida

(Other counsel listed on inside front cover)

James H. Evans

Attorney General

State of Alabama

Richard Blumenthal

Attorney General

State of Connecticut

Charles M. Oberly III

Attorney General

State of Delaware

Michael J. Bowers

Attorney General

State of Georgia

Elizabeth Barrett-Anderson

Attorney General

Territory of Guam

Warren Price

Attorney General

State of Hawaii

Bonnie J. Campbell

Attorney General

State of Iowa

Michael E. Carpenter

Attorney General

State of Maine

J. Joseph Curran, Jr.

Attorney General

State of Maryland

Scott Harshbarger

Attorney General

State of Massachusetts

Frank J. Kelley

Attorney General

State of Michigan

Hubert H. Humphrey III

Attorney General

State of Minnesota

Frankie Sue Del Papa

Attorney General

State of Nevada

Robert J. Del Tufo

Attorney General

State of New Jersey

John P. Arnold

Attorney General

State of New Hampshire

Tom Udall

Attorney General

State of New Mexico

Robert Abrams

Attorney General

State of New York

Jerry Boone

Solicitor General

State of New York

Lacy H. Thornberg

Attorney General

State of North Carolina

Charles S. Crookham

Attorney General

State of Oregon

Ernest D. Preate, Jr.

Attorney General

Commonwealth of Pennsylvania

Jorges Perez-Diaz

Attorney General

Commonwealth of Puerto Rico

James E. O'Neil

Attorney General

State of Rhode Island

Brian A. Goldman

Legal Counsel

Rhode Island Coastal

Resources Commission

Paul Van Dam

Attorney General

State of Utah

Jeffrey L. Amestoy

Attorney General

State of Vermont

James E. Doyle

Attorney General

State of Wisconsin

Dan Morales

Attorney General

State of Texas

BEST AVAILABLE COPYF

An

TABLE OF CONTENTS

Page

EE i

gy). iii

EE ce tt tt tw te ee 1

STATEMENT OF THE CASE .............. 3

SUMMARY OF THE ARGUMENT ........... 6

EE ee 8

I. BECAUSE PETITIONER FAILED TO

CHALLENGE THE PURPOSES OR AP-

PLICATION OF THE BEACHFRONT

MANAGEMENT ACT AND FAILED TO

SEEK APERMIT, THIS APPEAL SHOULD

ee ae eee 8

Il. GOVERNMENT REGULATION UNDER

THE POLICE POWER DOES NOT

AMOUNT TO A TAKING IN VIOLATION

OF THE FIFTH AND FOURTEENTH

AMENDMENTS WHERE IT PREVENTSA

LANDOWNER FROM MAKING A HARM-

FUL USE OF HISLAND............ 10

A. Beachfront Protection Laws Serve Valid

Police Power Purposes And Are Intended To

Prevent Great PublicHarm. ......... 10

B. Prohibition Of A Harmful Use of Property

Does Not Constitute An Unconstitutional

Taking Of Property Even If There Is No

Other Economically Viable Use... .... .. 15

C. The Petitioner Has Not Proved A Taking,

Il.

Having Conceded That Building On The

Beach/Dune System Would Be Harmful. . . .

Laws Intended To Prevent Harmful Uses Of

Property Are Constitutional If Not

Unnecessarily Harsh, But The State’s

Determination Of Legitimate Public

Purposes Is Entitled To Substantial Judicial

EN, a 6 ao i ok ee le ee

EVEN IF THE ACT DOES NOT PREVENT

A NUISANCE USE OF PROPERTY,

PETITIONER SHOULD NOT BE EN-

TITLED TO COMPENSATION ON THIS

il

20

TABLE OF AUTHORITIES

Cases Pages

Andrus v. Allard, 441 U.S. 51,65 (1979). ....... 20

Atlantic Coast Line Railroad Co. v. City of

Goldsboro, 232 U.S. 548(1914) .......... 18

Carter v. South Carolina Coastal Council, 281 S.C. 201,

RR | 23

Claridge v. New Hampshire Wetlands Board, 125

N.H. 745, 485 A.2g 287 (1964). .......... 23

Curtin v. Benson, 222 U.S. 78(1911).......... 19

Delta Airlines v. August, 450 U.S. 346(1981) ...... 8

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

Se ot ein eae er a eae ee eee ee 22

Ferguson v. Skrupa, 372 U.S. 726(1963) ....... 22

First English Evangelical Lutheran Church v. Los

Angeles County, 482 U.S. 304(1987) . 10, 16, 20, 24

First English v. County of Los Angeles, 210 Cal.App.3d

1353, 258 Cal. Rptr. 893 (Cal.App. 1989), cert.

denied, 493 U.S. 1056(1990) ......... 16, 23

Goldblatt v. Town of Hempstead, 369

de Is 6) ca a eal e see 19, 21, 23, 25

Graham v. Estuary Properties, Inc., 399 So.2d 1374

(Fla.), cert. denied sub. nom., Taylor v. Graham,

ek rr 20, 23

Hadacheck v. Los Angeles, 239 U.S. 394 (1915) 18, 19, 23

Hall v. Board of Environmental Protection, 528 A.2d

Se Reed ae BOR py yen 4b Og es 26

il

Cases Pages

Just v. Marinette County, 56 Wisc.2d 7, 201 N.W.2d

NS oe a a ae a le 23

Keystone Bituminous Coal Ass’n v. DeBenedictis,

sane yk yk es oe OO passim

Lucas v. South Carolina Coastal Council, 404 S.E.2d

I 5 ns ed ew bg See eee ce 6, 8

Maple Leaf Inv., Inc. v. State Dept. of Ecology, 88

Wash.2d 726, 565 P.2d 1162(1977) ........ 23

McCarthy v. City of Manhattan Beach, 41 Cal.2d 879,

OB6 F.Oe G8 Wal. 19564)... tte es 19

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

UE 6 ig 5 st VG awe e+ 19, 26

Miller v. Schoene, 276 U.S. 272 (1928) . . . 17, 18, 24, 26

Mugler v. Kansas, 123 U.S. 623 (1887). . . . 17-19, 23, 24

Nollan v. California Coastal Comm’n, 483 U.S.

IS ate ct a ates eh a a ies 22, 23

Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d

Ee ee a 25

Pennsylvania Central Transp. Co. v. City of New York,

nn rn. . 5 kb we ee be 8 24, 26

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

elo aae Mo aed tor igh ate Felt 16, 17, 22

Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16

(1978), cert. denied, 440 U.S. 936(1979) ..... 23

Powell v. Pennsylvania, 127 U.S. 678 (1888) ..... 23

Reinman v. Little Rock, 237 U.S. 171 (1915). . . . 19, 23

iv

Cases Pages

Rowe v. Town of North Hampton, 131 N.H. 424, 553

er ae eat a de

State of New Hampshire Wetlands Bd. v. Marshall,

127 N.H. 240, 500 A.2d 685, 689(1985)......

Stone v. Mississippi, 101 U.S. 814(1880) .......

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

101 Cal. Rptr. 93 (Cal.App. 1972) .........

Turnpike Realty Co. v. Town of Dedham, 362 Mass.

221, 284 N.E.2d 891 (1972), cert. denied, 409

ee I ss 'n y-a e e G a oe boo wn 3

United States v. Riverside Bayview Homes, 474 U.S.

I irae a eee ee lg ae ae ge

Usdin v. State, Dept. of Envtl. Protection, 173

N.J.Super. 311, 414 A.2d 280 (1980), aff'd,

430 A.2d 949 (N.J.1981)..............

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

ea a a asa a a a ae eee 8

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)... 2...

Youakim v. Miller, 425 U.S. 231(1976).......2.2..

UNITED STATES CONSTITUTION:

ee 8, 10, 16,

Pages

STATUTES AND REGULATIONS:

Coastal Zone Management Act

Ee ee 1

RR 1

16 U.S.C. § 1458(aX2)(1990).............. 1

ns e.g es 5 wie Slee bs 1

National Flood Insurance Program

Gee I, wg wg hee eae we ees 26

South Carolina Beachfront Management Act . . . passim

S.C. Code section 48-39-10 ............. 3, 10

S.C. Code section 48-39-180 .............. 10

S.C. Code section 48-39-250 .............. 11

S.C. Code section 48-39-260 .............. 11

S.C. Code section 48-39-280 .............. 5

S.C. Code section 48-39-290 .............. 26

S.C. Code section 48-39-290D) ............ 6

MISCELLANEOUS AUTHORITIES:

“Disaster Assistance: Federal, State, and Local

Kesponses to Natural Disasters Need

Improvement.” Report to Congressional

Requesters. GAO/RCED-91-43 .......... 15

Anderson, Takings and Expectations: Toward a

“Broader Vision” of Property Rights, 37 Kans.

Ck eee a 26

Coch, Nicholas K. and Manfred P. Wolff, “Effects of

Hurricane Hugo Storm Surge in Coastal South

Carolina,” Journal of Coastal Research. Special

oe I oe se oa ee ee % 14

vl

Pages

Comment, Shifting Sands and Shifting Doctrines,

The Supreme Court’s Changing Takings Doctrine

and South Carolina’s Coastal Zone Statute, 79

eo Re ee eee 12-14

Ecological Processes in Coastal Environments

(R. Jefferies & A. Davy eds. 1979)... ...... 12

Godschalk, Brower and Beatley, “Catastrophic Coastal

Storms” at 19 (Duke University Press 1989)... 14

Hwang, Shoreline Setback Regulations and the

Tiueings Analysis, 13 U. Haw. L. Rev. 1(1991) .. 12

I. McHarg, Design With Nature, 7(1969) ....... 12

J. Titus, The Causes and Effects of Sea Level Rise, in

Impact of Sea Level Rise on Society (H. Wind ed.

a ea a Se AP OL 2 ele gC 5 es ee % 12

J. Clark, Coastal Ecosystem Management: A

Technical Manual for the Conservation of

Coastal Zone Resources ........-2.402--. 13

L. White, Life in the Shifting Sand Dunes (1976)... 12

Maloney and O’Donnell, Drawing the Line at the

Oceanfront, 30 Fla.L.Rev. 383(1978) ....... 12

Owens, Where Erosion and Development Meet, EPA

Journal, Sept.-Oct. 1989 at45........... 12

P. Boaden & R. Seed, An Introduction to Coastal

Beolagy, 139-134 (1966) ..... 2... eevee 12

Pilkey, America’s Beaches: An Endangered Species?,

SEA Grant Today, Nov.-Dec. 198lat14 ..... 12

Platt, Bretley and Miller, “Coastal Erosion: Our Retreat

from the Tide,” Environment, Nov.1991 ..... 14

vil

eS er

R. Weggel, S. Brown, and E. Doheny, “The Cost of

Defending Developed Shorelines Along Sheltered

Waters of the United States” in USEPA The

Potential Effects of Global Climate Change on the

United States, (USEPA EPA-230-05-89-050,

Washington, D.C. December 1989) ........ 12

Report of South Carolina Blue Ribbon Committee on

Beachfront Management, Myrtle Beach, 1987 ... .

Report of the Barrier Island Work Group, U.S.

Department of Interior, (1978) (“Barrier Island

ee 13

Sax, Takings, Private Property and Public Rights, 81

pe ROR 15, 26

Skelton, Houses on the Sand: Takings Issues

Surrounding Statutory Restrictions on the Use of

Oceanfront Property, 18 B.C. Envtl. Aff. L. Rev.

I rN ne eee tae ol 12

Titus, “Greenhouse Effect, Sea Level Rise and Coastal

Zone Management,” 14 Coastal Zone Management

Journal No. 3 at 155(1986) ............ 14

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

The Drowning of America’s Shoreline, 27 (1979). 12

Watson and Sedgley, Land Use Regulation By the

Virginia Marine Resources Commission,

7 Va. J. Nat. Res. L. 381 (1987)

Vill

INTEREST OF AMICI

Amici respectfully submit this brief in support of the

respondent pursuant to Rule 37, Rules of the Supreme Court

of the United States.

The states that have joined as amici in this case, together

with their many political subdivisions, exercise a broad

range of regulatory powers within their respective jurisdic-

tions. They are charged with the difficult and delicate

responsibility of balancing demands for development

against public health and safety concerns. This appeal

raises, for the first time in the course of this suit, the

question of whether petitioner’s land, located in a hazardous

area, is suited for development and what dangers would

attend that development. Although the property in question

here is beachfront land and thus of particular interest to the

coastal states, all states that attempt to regulate or restrain

development of land exposed to the hazards and ravages of

nature must be concerned with the outcome.

Since the passage of the Federal Coastal Zone

Management Act in 1972 that required the states to better

control coastal development, every coastal state has enacted

laws to protect its coastline.) Countless jurisdictions have

1 The Coastal Zone Management Act, 16 U.S.C. §§ 1451-1464, ad-

ministered by NOAA, directs that states minimize loss of life and property

caused by improper development in flood-prone, storm surge and erosion-

prone areas and by destruction of beaches, dunes and barrier islands. See

16 U.S.C. §§ 1452(2B), 1456(bX2). The 1990 amendments direct that

state programs prevent or significantly reduce threats to life and property

by eliminating development and redevelopment in high-hazard areas. See

16 U.S.C. § 1458(aX2)(1990).

The following 24 states have enacted laws for protection of coastal

areas: Alabama, Coastal Area Management Act, Ala. Code §§ 9-7-10 to

9-7-20 (1987); Alaska, Coastal Management Program Law, Alaska Stat.

§§ 46.40.010 to 46.40.210 (1987); California Coastal Act, Ca. Pub. Res.

Code §§ 30000-30900 (West 1986); McAteer-Petris Act, Ca. Govt. Code

§ 66600 et seq. (West 1991); Connecticut, Inland Wetlands and Watercourses

Act, Conn. Gen. Stat. §§ 22a-36 to 22a-45 (1985), Coastal Management

Act, Conn. Gen. Stat. §§ 22a-90 to 22a-113 (1985), Tidal Wetlands Act,

Conn. Gen. Stat. §§ 22a-28 to 22a-35 (1985); Delaware Beach Preservation

Act, 7 Del. Code Ch. 68, Coastal Zone Act, 7 Del. Code Ch. 70 (1990),

Wetlands Act, 7 Del. Code Ch. 66 (1983); Florida, Beach and Shore

Preservation Act, Fla. Stat. §§ 161.011-161.58 (1988), Coastal

Management Act, Fla. Stat. §§ 380.19-380.27 (1978), Wetlands Protection

Act, Fla. Stat. §§ 403.901-403.938 (1990); Georgia, Coastal Marshlands

Protection Act of 1970, Ga. Code Ann. §§ 12-5-280 to 12-5-292 (1982 &

Supp. 1987), Shore Assistance Act of 1979, Ga. Code Ann. §§ 12-5-230 to

12-5-246 (1982 & Supp. 1987); Hawaii, Coastal Zone Management Law,

Haw. Rev. Stat. §§ 205A-1 to 205A-49 (1988 & Supp. 1990); Louisiana,

State and Local Coastal Resources Management Act of 1978, La. Rev.

Stat. Ann. §§ 49:213.1-49:214.41 (Supp. 1990); Maine, Natural Resources

Protection Act, Me. Rev. Stat. Ann. tit. 38, §§ 480A-490 (1990), Shoreland

Protection Act, Me. Rev. Stat. Ann. tit. 38, §§ 435-447 (1964 & Supp. 1987);

Maryland, Wetlands Law, Md. Nat. Res. Code Ann. §§ 9-101 to 9.603 (1990

& 1991 Supp.), Beach Erosion Control and Replenishment Act, Md. Nat.

Res. Code Ann. §§ 8-1101 to 8-1105.1 (1990 and 1991 Supp.);

Massachusetts, Wetlands Protection Laws, Mass. Gen. L. ch. 130, § 105,

ch. 131 §§ 40-42 (1979 & Supp. 1987); Michigan, Shorelands Protection

and Management Act of 1970, Mich. Comp. Laws Ann. §§ 281.631-281-

644 (1979), Goemare-Anderson Wetland Protection Act, Mich. Comp.

Laws Ann. §§ 81-701-281.722 (Supp. 1987); Mississippi, Coastal

Wetlands Protection Law, Miss. Code Ann. §§ 49-27-1 to 49-27-69 (1990);

New Hampshire, Wetlands Act, N.H. Rev. Stat. Ann. §§ 483-A:1 to 483-A:8

(1983 & Supp. 1986); New Jersey, Coastal Area Facility Review Act, N.J.

Stat. Ann. §§ 13:19-1 to 13:19-23 (West 1979 & Supp. 1987), Wetlands Act

of 1970, N.J. Stat. Ann. §§ 13:9A-1 to 13:9A-10 (West 1979 & Supp. 1987);

New York, Waterfront Revitalization and Coastal Resources Act, Exec.

Law Art. 42 (McKinney 1984); Freshwater Wetlands Act, N.Y. Envtl.

Conserv. Laws §§ 24-0101 to 24-1305 (McKinney 1984 & Supp. 1988),

Tidal Wetlands Act, N.Y. Envtl. Conserv. Law §§ 25-0101 to 25-0601

(McKinney 1984), Coastal Erosion Law, N.Y. Envtl. Conserv. Law

§§ 34-0101 to 34-0113 (McKinney 1984); North Carolina, Coastal Area

Management Act of 1974, N.C. Gen. Stat. §§ 113A-100 to 113A-128 (1987);

Ohio, Shore Erosion Law, Ohio Rev. Code Ann. §§ 1507.01-1507.13,

1507.99 (Page 1986); Rhode Island, Wetlands Laws, R.I. Gen. Laws

§§ 2-1-13 to 2-1-27 (1987), Coastal Resources Management Law., R.I. Gen.

Laws §§ 46-23-1 to 46-23-18 (1987); South Carolina, Coastal Zone

Management Act, S.C. Code Ann. §§ 48-39-10 to 48-39-220 (Law Co-op.

1987) Texas Coastal Management Plan Act, (Ch. 295, 1991 Tex.

Sess. Law Serv. 1220(Vernon); Virginia, Coastal Primary Sand Dune

also passed laws to control development in floodplains. The

dangers that have prompted adoption of these laws are

obvious and indisputable, and were not even questioned by

the petitioner below. Yet now having avoided the making of

a record that would drive home those dangers, petitioner

suggests the South Carolina law has little to do with public

health and safety, and that, in any event, he is entitled to

compensation regardless of the dangers the law would curb.

A decision that adopts petitioner’s radical reformulation

of takings jurisprudence and that sanctions the procedural

maneuvering by which petitioner averted any examination

of the South Carolina law and the hazards it sought to

control would gravely impair government in the exercise of

its police power responsibilities. Ultimately, of course, it is

not government that will suffer, but the citizens who depend

on it for protection of their health and safety.

STATEMENT OF THE CASE

Petitioner, David H. Lucas, is the fee owner of two un-

developed, oceanfront lots located in the Wild Dunes

Development on the Isle of Palms, a barrier island. In 1988

South Carolina’s Coastal Zone Management Act was

amended by the Beachfront Management Act. S.C. Code

section 48-39-10 et seq. (the “Act”). The 1988 Act required

the respondent to impose setback lines along the coast of

South Carolina. These lines are referred to in the Beachfront

Protection Act, Va. Code Ann. §§ 62.1-13.21 to 62.1-13.28 (1987), Wetlands

Act Va. Code Ann. §§ 62-13.1 to 62.1-13.20 (1987); and Washington,

Shoreline Management Act of 1971, Wash. Rev. Code §§ 90.58.010-90.58.930

(Supp. 1987).

According to NOAA, the following 14 states implement NOAA-

approved beach set-back laws: Maine, Delaware, Florida, Wisconsin,

Rhode Island, Maryland, Alabama, Hawaii, New York, North Carolina,

Michigan, New Jersey, South Carolina, Pennsylvania.

Management Act as a baseline and a setback line. No

habitable structure can be built seaward of the baseline in

this “critical area.” The two lots owned by Mr. Lucas lie

entirely seaward of the established baseline.”

Petitioner brought this action asserting that the restric-

tions on the use of his two lots amounted to a taking of his

private property for public purposes, and that he was there-

fore constitutionally entitled to receive just compensation.

(See Complaint, R. 5-8) The complaint did not challenge the

constitutionality of the Beachfront Management Act nor did

it contend that the Act’s legislative purposes were not served

by its application to petitioner’s property.® Petitioner simply

maintained that he was entitled to compensation under the

Constitution of the United States and the Constitution of

the State of South Carolina because he was deprived of the

use of his property. Jd.

Prior to trial, the parties stipulated that, under the Act,

the methodology for setting the baseline is to determine the

most landward position of the shoreline during the past

forty years and to set a baseline at that point. Application

of that methodology in this case resulted in a baseline that

was entirely landward of Mr. Lucas’ two lots (R. 13). At trial,

2 The 1988 amendments were prompted by a report of an appointed

Blue Ribbon Committee on Beachfront Management that had found the

“South Carolina beach/dune system is...in a state of crisis” and that 57 of

the State’s 198 miles of shoreline were “critically eroding.” One of the

primary causes was poorly planned development which encroached upon

the beach/dune system and accelerated its erosion. This system was th-

“first line of defense in protecting life and property against the ravages

of storms and shoreline erosion.” Report of South Carolina Blue Riboon

Committee on Beachfront Management, Myrtle Beach, 1987, pp. i, i, 1-2.

3 Mr. Lucas’ counsel acknowledged at trial that Mr. Lucas was not

raising any issue as to the Act (R. 68), and the trial court so found in its

final order (R. 125). Nor did Mr. Lucas ever challenge the location of the

baseline (R. 40, 98).

petitioner's witness acknowledged the occurrence of severe

beach erosion in the vicinity of the Lucas lots as recently as

1983 (R. 20-21). Mr. Lucas himself admitted that at that

time the scarp line was at the face of one of the ocean front

buildings in Wild Dunes (R. 37).

An expert in coastal engineering, testifying for the

Council, stated that the interim baseline was set on the

Lucas lots at “the most landward point of erosion or the most

landward location of the shoreline over the last forty years,”

which occurred in 1963 (R. 71). The Act required this for

“inlet erosion zones,” which are particularly unstable. S.C.

Code § 48-39-280. Petitioner’s lots are in such a zone.

Between 1957 and 1963, the area underwent severe erosion

and the shoreline was “on the order of a hundred to a

hundred and fifty feet behind the landward most lot line | of

the Lucas property|” (R. 79; see also R. 83). As recently as

1973, the Lucas lots were partly covered by a tidal pond (R.

80). With respect to the erosion occurring in 1983, the expert

testified that without emergency “shoal scraping” and sub-

sequent beach nourishment, the house on lot 20, two lots to

the west of the Lucas property, would have been threatened

by erosion (R. 87-88).

Lengthy revetments now lie to the east and west of the

lots (R. 100-101). The area in the vicinity of the Lucas lots,

according to the coastal engineer, is very dynamic and is

subject to both erosion and accretion, depending upon the

presence of offshore shoals (R. 76-77). Although it is not

possible to predict the occurrence of shoals or periods in

which they occur (R. 76-77), this expert thought it a

“likelihood” that the shoreline could again recede as far back

as the 1963 line (R. 80-81). It is possible, he pointed out, for

4 The sand-scraping process requires the use of front end loaders to

scrape sand from shoals at low tide and to put the sand in areas that

require protection from erosion(R. 100-101).

a storm to remove hundreds of feet of beaches and dunes in

just a matter of hours (R. 64).

The final order of the trial court found that the prohibition

on construction deprived Mr. Lucas of any reasonable

economic use of the lots, rendered them valueless, and

effected a “total taking” (R. 127-129). On appeal, the

Supreme Court of South Carolina reversed, ruling that

Mr. Lucas was bound by the legislative findings that he did

not contest, that prohibition of new construction in close

proximity to the beach/dune area was necessary to prevent

great public harm, and that the case was controlled by the

nuisance exception to the Takings Clause recognized in

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 US.

470 (1987), and a long line of Supreme Court decisions.

Lucas v. South Carolina Coastal Council, 404 S.E.2d 895

(S.C. 1991).

In 1990, the state legislature amended the Act to permit

new construction seaward of the baseline pursuant to a

special permit. S.C. Code Section 48-39-290(D). Under that

amendment, Lucas could seek a permit to construct single

family residences on the lots in question.

SUMMARY OF THE ARGUMENT

I. This appeal should be dismissed because petitioner

never challenged the Act or its application to his property.

One of the basic rules of this Court is that it does not decide

questions that were not raised in the lower courts.

Petitioner argues for the first time that the Act does not

prevent harm. The amici States assert that the Act does

prevent serious public harm and that this issue, with such

wide-ranging implications for the States, should not be

decided in the absence of an appropriate record. Moreover,

because petitioner may have been entitled to a permit under

the 1988 Act as well as the 1990 amendments, his taking

claim is not ripe for review. As an alternative, therefore, the

Court could remand this case to enable petitioner to seek a

permit.

II. Prohibition of permanent structures on the beach/dune

system can help prevent erosion of the beaches and dunes

and thus preserve the protection the dunes afford against

storm surges and flooding. Wind-blown debris from houses

destroyed by storms and hurricanes can be very destructive;

the Act serves to reduce the hazards such debris poses to

inland residents and property. Decisions of this Court have

repeatedly held that uses of property with such attendant

dangers and destructive effects can be prohibited without

any requirement for compensation. Furthermore, because

petitioner simply demanded compensation and never

sought to challenge the purpose and operation of the Act, he

did not prove a taking and is therefore not entitled to

compensation.

III. All three factors under the “ad hoc” takings inquiry

weigh in favor of South Carolina. In protecting lives and

property, the Act serves the most compelling state interest.

Given the exposed site of the property and its vulnerability

to erosion or submergence, petitioner could not have had a

reasonable expectation that it was suitable for permanent

structures. The economic impact or the decline in value is

not significant if it properly omits value created through

public subsidies of various sorts. Government should not

pay for the value it created when such value must be

adjusted to protect the public health and safety or for value

attributable to a harmful use.

ARGUMENT

I. BECAUSE PETITIONER FAILED TO

CHALLENGE THE PURPOSES OR AP-

PLICATION OF THE BEACHFRONT

MANAGEMENT ACT AND FAILED TO SEEK

A PERMIT, THIS APPEAL SHOULD BE

DISMISSED.

Petitioner’s brief argues for the first time in the course of

this case that the Act was not directed at preventing public

harm. (Br. at 38 et seq.) Petitioner never challenged the Act

in the trial court and never asserted this argument in the

appeal below. His seven page brief before the South Carolina

Supreme Court merely argued that if he could not use his

property, no matter the reason, he was entitled to compen-

sation under the Fifth Amendment. He now asks this Court

to rule categorically that the Act prevents public harm, if at

all, in only the most marginal sense. The Court should not

entertain this argument.

It is an established principle of this Court that it does not

decide questions not raised in the lower court. Delta Airlines

v. August, 450 U.S. 346, 362 (1981); Youakim v. Miller, 425

U.S. 231, 234 (1976). That principle should apply with

particular force here.

To construe the Act as petitioner asks would undercut the

laws of every coastal state that restricts or prohibits

5 The Supreme Court of South Carolina concluded that petitioner

concede(d] that the beach/dune area of South Carolina's

shores is an extremely valuable public resource, that the

erection of new construction, inter alia, contributes to the

erosion and destruction of this public resources; and that

discouraging new construction in close proximity to the

beach / dune area is necessary to prevent a great public harm.

Lucas v. South Carolina Coastal Council, 404 S.E.2d 895, 898 (S.C. 1991)

(emphasis added).

construction on the beach/dune system and by extension

many other laws similarly affecting building in areas sub-

ject to flooding and other known hazards. Petitioner has

assiduously avoided pleading and trying an issue that would

have enabled the Council to prove the very real dangers

attendant to development on the beach/dune system. Those

dangers cannot be adequately demonstrated for the first

time in this Court. Nevertheless, because they are so acute,

the amici States will discuss them in this brief.

Most importantly, the ruling petitioner seeks, that the Act

and laws like it do not prevent harm, would be inappropriate

in the complete absence of a relevant record. Little in the

way of helpful guidance could be provided the other states

that inevitably will be forced to defend their laws. Moreover,

consideration of his argument would encourage other poten-

tial plaintiffs raising a takings claim to forego any challenge

to similar laws in hopes of inducing the government not to

make a record. Government, for reasons of economy, may

understandably limit its defense to find, on appeal, that the

burden of proof has shifted and it has only sparse legislative

findings to rebut a statutory challenge.

Given petitioner’s tactical choice and the fact that this

Court has consistently recognized the nuisance exception to

the Takings Clause, the States submit that the proper

disposition of this case is dismissal, not remand. Petitioner

is not entitled to another opportunity to try an issue he chose

to concede. Should the Court not be inclined to dismiss, the

States strongly urge that it remand the case for considera-

tion of petitioner’s entitlement to a permit under the 1988

or 1990 amendments to the Act and for development of a

record, if necessary, on the harms the Act would prevent.

Allowing a landowner to collect compensation without being

required to seek a variance or other administrative relief is

a severe intrusion on state prerogatives and would be finan-

cially disastrous to government. Such a result is clearly

contrary to this Court’s precedents. See Williamson County

Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172,

190 (1985), and United States v. Riverside Bayview Homes,

474 U.S. 121, 126 (1985).° The Takings Clause permits

government to take and pay for property when necessary; it

is not a grant of authority to courts or landowners to foist

property upon states that do not want it.

II. GOVERNMENT REGULATION UNDER

THE POLICE POWER DOES NOT AMOUNT

TOA TAKING IN VIOLATION OF THE FIFTH

AND FOURTEENTH AMENDMENTS

WHERE IT PREVENTS A LANDOWNER

FROM MAKING A HARMFUL USE OF HIS

LAND.

A. Beachfront Protection Laws Serve Valid Police

Power Purposes And Are Intended To Prevent

Great Public Harm.

The South Carolina Beachfront Management Act of 1988,

S.C. Code Section 48-39-10 et seqg., serves a number of

critical purposes that are embodied in specific legislative

findings. The Act includes findings that, inter alia:

1. The beach/dune system protects life and proper-

ty by serving as a storm barrier which dissipates

6 The trial court ruled without explanation that administrative relief

in the form of a permit was not appropriate (R. 125) although the 1977

Act in § 48-39-180 clearly contemplated such relief. The South Carolina

Supreme Court did not address this issue, although it was preserved and

argued by the council (R. 134 and Brief at 41). This Court has ruled that

once a taking has occurred the government retains the option of

withdrawing its action or exercising its eminent domain power. First

English Evangelical Lutheran Church v. Los Angeles County, 482 US.

304, 321 (1987). Respondent was not afforded this option.

10

wave energy and contributes to shoreline stability

in an economical and effective manner;

2. Many miles of South Carolina’s beaches have

been identified as critically eroding;

3. Development on the beach/dune system has

jeopardized the stability of the system, accelerated

erosion, and endangered adjacent property;

4. Erosion, although a natural process, becomes a

significant problem for man only when structures

are created in close proximity to the beach/dune

system. It is in both the public and private inter-

ests to afford the beach/dune system space to ac-

crete and erode in its natural cycle.

See S.C. Code section 48-39-250.

The Act therefore announced a policy to

(l1)protect, preserve, restore and enhance the

beach/dune system, the highest and best uses of

which are declared to provide:

(a) a barrier and buffer from high tides, storm

surge, hurricanes, and normal erosion....

* * Kk *

S.C. Code section 48-39-260.

The severity and scope of the problem addressed — con-

struction of buildings on the sand dunes — may not be fully

conveyed by the characteristically terse legislative findings.

Construction on the dunes can cause widespread and

catastrophic harm. A full understanding of this problem

dispels any suspicion that the intent of the Act was simply

to ensure beaches attractive to tourists and that any prohibition

11

on construction was intended to benefit the many at the

expense of the few.

The pernicious effects of construction on beach sand dunes

are well documented in the legal and scientific literature.

See Maloney and O’Donnell, Drawing the Line at the

Oceanfront, 30 Fla.L.Rev. 383, 389-391 (1978); Hwang,

Shoreline Setback Regulations and the Takings Analysis, 13

U. Haw. L. Rev. 1, 1-4, 37 (1991); Watson and Sedgley, Land

Use Regulation By the Virginia Marine Resources

Commission, 7 Va. J. Nat. Res. L. 381, 387-388 (1987);

Skelton, Houses on the Sand: Takings Issues Surrounding

Statutory Restrictions on the Use of Oceanfront Property, 18

B.C. Envtl. Aff. L. Rev. 125, 125-127 (1990); Comment,

Shifting Sands and Shifting Doctrines: The Supreme

Court’s Changing Takings Doctrine and South Carolina's

Coastal Zone Statute, 79 Calif.L.Rev. 205 (1991).’ The

beaches and near-shore sand system absorb the erosive

force of ocean tides and waves and serve as natural storm

breaks, buffering severe winds and tides before they reach

more populous inland areas. Coastal dunes serve as reser-

voirs of sand, retaining wind-driven sand and supplying it

to the beaches as they are worn down by wave action. The

protective mass of dunes that are relatively intact provides

7 These commentators cite such works as W. Kaufman & O. Pilkey,

The Beaches Are Moving: The Drowning of America’s Shoreline 27 (1979);

P. Boaden & R. Seed, An Introduction to Coastal Ecology 129-134 (1985);

L. White, Life in the Shifting Sand Dunes (1976); Ecological Processes in

Coastal Environments (R. Jefferies & A. Davy eds. 1979); J. Titus, The

Causes and Effects of Sea Level Rise, in Impact of Sea Level Rise on

Society (H. Wind ed. 1987); Owens, Where Erosion and Development Meet,

EPA Journal, Sept.-Oct. 1989 at 45; Pilkey, America’s Beaches: An

Endangered Species ?, SEA Grant Today, Nov.-Dec. 1981 at 14: I. McHarg,

Design With Nature 7 (1969). See also R. Weggel, S. Brown, and E. Doheny,

“The Cost of Defending Developed Shorelines Along Sheltered Waters of

the United States” in USEPA The Potential Effects of Global Climate

Change on the United States, (USEPA EPA-230-05-89-050, Washington,

D.C. December 1989).

12

flood protection during storm surges.® When the dune

system can no longer renourish the beach, the erosion will

accelerate and may eventually reach structures on

the dunes.

Development along barrier islands and sand dunes has

the effect of damaging and eroding the natural sand dune

barrier both by displacing and destroying the dune and by

eliminating stabilizing vegetation. See, Comment, supra, 79

Calif.L.Rev. 213-214. Another commentator has observed:

Although any beach will change with time, those

on which the dunes are left relatively undisturbed

stand the best chance of surviving with minimal

change. The developed areas south of Virginia

Beach are prime examples of these phenomena.

There, the beaches are widest where beach struc-

tures are placed behind the primary row of sand

dunes, walkways are constructed over rather than

through the dunes, sand fences are placed to aid

the natural processes of dune building, and ap-

propriate vegetation is planted on newly-formed

dunes. Where these precautions are not observed,

or where the dunes have been leveled to make

room for homes, the beach is narrower; in some

cases the waves now break under the pilings that

support the homes.

Watson and Sedgley, supra, 7 Va. J. Nat.Res.L. 387-388

(footnotes omitted).

The dangers of development upon the beach/dune system

are wide-ranging and threatening to public safety as well as

8 J. Clark, Coastal Ecosystem Management: A Technical Manual for

the Conservation of Coastal Zone Resources, pp. 318, 336, 566; Report of

the Barrier Island Work Group, U.S. Department of Interior (1978)

(“Barner Island Work Group Report”) at 13.

13

public resources. This problem will only worsen as sea levels

rise.” As beachfront homes, hotels and other structures

proliferate, inland flood protection is reduced. Beachfront

structures are themselves particularly vulnerable to

destruction by hurricanes and severe storms and their wind-

driven debris may severely damage more inland houses and

structures.!° Where beachfront development is dependent

upon septic tanks, storms may transport their contents into

valuable bays and estuaries, preventing the harvesting of

shellfish and other marine resources. Infrastructure created

at public expense to serve and sustain beachfront develop-

ment — e.g., roads, bridges, telephone and electric lines, gas

lines, water and sewer lines — may be damaged or destroyed

by severe storms. The public bears the risk of greater

damage caused by increased flood hazards and wind-driven

debris. The public likewise bears the cost of disaster relief

and repair and replacement of infrastructure that principally

9 Rising sea levels wil! exacerbate erosion, increase the loss of protec-

tive beaches and provide a higher base level for storm surges. See Titus,

“Greenhouse Effect, Sea Level Rise and Coastal Zone Management,” 14

Coastal Zone Management Journal No. 3 at 155 (1986). A hurricane’s

storm surge may range from 4 to 20 feet above sea level. See Godschalk,

Brower and Beatley, “Catastrophic Coastal Storms” at 19 (Duke

University Press 1989).

Hurricane Hugo, which struck South Carolina in 1989, caused a

storm surge 20 feet above mean sea level! to sweep over three developed

barrier islands, including the Isle of Palms, off Charleston, S.C. See Platt,

Bretley and Miller, “Coastal Erosion: Our Retreat from the Tide,”

Environment, Nov. 1991.

10 See discussion in Comment, Shifting Sands and Shifting Doctrines,

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

Coastal Zone Statute, 79 Calif.L.Rev. 205, 212-213(1991), of the 29 deaths

and $6 billion in property damage Hurricane Hugo caused in 1989 in

South Carolina alone. The author suggests that “[mJuch of the damage

was likely the result of coastal zone mismanagement.”

In South Carolina even storm resistant structures were damaged

by debris from other houses. Coch, Nicholas K. and Manfred P. Wolff,

“Effects of Hurricane Hugo Storm Surge in Coastal South Carolina,”

Journal of Coastal Research. Special Issue No. 8. Spring 1991.

14

benefit the beachfront property owner. Even where the only

immediate injury may be a receding shoreline caused by

accelerated erosion, it is generally the public that must pay

for extremely costly beach renourishment projects. !?

The question presented by this case is not simply the

question of what the South Carolina law would do to the

owner of the beachfront lot, but what harm that owner, and

others similarly situated, would do to the property and

resources of others. As Professor Sax has written:

Property does not exist in isolation. Particular

parcels are tied to one another in complex ways,

and property is more accurately described as being

inextricably part of a network of relationships that

is neither limited to, nor usefully defined by, the

property boundaries....Frequently, use of any

given parcel of property is at the same time effec-

tively a use of, or a demand upon, property beyond ,

the border of the user. a

4

Sax, Takings, Private Property and Public Rights, 81 Yale

L.J. 149, 152 (1971).

B.. Prohibition Of A Harmful Use Of Property Does

Not Constitute An Unconstitutional Taking Of

Property Even If There Is No Other Economically

Viable Use.

Under the common law all property was deemed held

subject to the maxim “sic utere tuo ut alienum non laedas”

(use your own property in such a manner as not to injure

11 Federal costs for Hurricane Hugo were $1.6 billion for disaster relief

and $364 million for flood insu:ance payments. GAO Report. 1991.

“Disaster Assistance: Federal, State, and Local Responses to Natural

Disasters Need Improvement.” Report to Congressional Requesters.

GAO/RCED-91-43.

15

that of another). In 1987 this Court reaffirmed the vitality

of the maxim in the face of a Fifth Amendment takings

challenge:

While each of us is burdened somewhat

by...restrictions [on use of property|, we, in turn,

benefit greatly from the restrictions that are

placed on others. [Citations omitted.| These

restrictions are “properly treated as part of the

burden of common citizenship” Citation

omitted.] Long ago it was recognized that “all

property in this country is held under the implied

obligation that the owner's use of it shall not be

injurious to the community,” Mugler v. Kansas,

123 U.S. at 65...and the Takings Clause did not

transform that principle to one that requires com-

pensation whenever the State asserts its power to

enforce it.

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.

470, 491-492 (1987) (emphasis added). !

Keystone addressed a number of important questions that

had clouded the field of takings jurisprudence. First, in

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

393 (1922), the decision stated that that was the “case of a

12 Justice O’Connor, dissenting in Keystone, supra, subsequently, in

First English Evangelical Lutheran Church v. Los Angeles County, 482

U.S. 304, 362 (1987), concurred in the dissenting opinion of Justice

Stevens that reiterated the principles of Keystone. The majority decision

in First English did not determine whether a taking existed on the facts

alleged but rather decided the strictly legal question of whether a tem-

porary taking would require compensation to the property owner. On

remand, the California appellate court, relying heavily on Justice Stevens’

dissent, found that an interim county ordinance prohibiting construction

in a floodplain did not constitute a taking. First English Evangelical

Lutheran Church v. County of Los Angeles, 210 Cal.App.3d 1353, 258

Cal.Rptr. 893 (Cal.Ct.App. 1989), cert. denied, 493 U.S. 1056 (1990).

° 16

single house,” that the interests in conflict were private, and

that the Kohler Act, which sought to prevent subsidence

caused by mining, was not aimed at protecting the public

but rather sought only a “balancing of the private economic

interests of coal companies against the private interests of

the surface owners.” Keystone, supra, at 485. Justice Holmes,

in writing for the majority, had not taken issue with Justice

Brandeis’ opinion that the State has an absolute right to

prohibit land use that amounts to a public nuisance but

simply had disagreed with Justice Brandeis over whether

the Kohler Act represented such a prohibition. Jd. at 488 n. 17.

Second, the Court made it clear that Pennsylvania Coal

had not overruled Mugler v. Kansas, 123 U.S. 623 (1887),

and a long line of cases that stood for the proposition that a

prohibition simply upon the use of property for

purposes that are declared, by valid legislation, to

be injurious to the health, morals, or safety of the

community, cannot, in any just sense, be deemed

a taking or appropriation of property...

Keystone, supra, at 489 (quoting Mugler, supra, at 668-669).

The Keystone decision pointed directly to Miller v. Schoene,

276 U.S. 272 (1928), decided just five years after

Pennsylvania Coal by a unanimous Court. In Miller, the

Court held that the Takings Clause did not require the State

of Virginia to compensate the owners of infected cedar trees

for the value of the trees that State had ordered destroyed.

Miller ruled that the State did not exceed its constitutional

powers by deciding to destroy one class of property (healthy

cedar trees) in order to save another which was, in the

judgment of the Virginia legislature, of greater value to the

public (apple trees). Here, South Carolina has chosen to

limit one property interest to preserve other property, public

resources and the public safety.

17

The Court noted in Keystone that it had “repeatedly

upheld regulations that destroy or adversely affect real

property interests,” 480 U.S. at 488 n. 18, and the fact that

a property owner was denied the “economically viable use

of his land,” although recognized as a factor in takings

analysis, would not require compensation where “the public

interest in preventing activities similar to public nuisances

is a substantial one....” Jd. at 492. Mugler, supra, said

expressly that the police power would tolerate the “destruc-

tion of property” to abate a public nuisance, see 123 U.S. at

669, and Miller v. Schoene, 276 U.S. at 279-280, said exactly

the same thing, relying on Mugler, Hadacheck v. Los

Angeles, 239 U.S. 394 (1915), and a host of other cases. In

Hadacheck, this Court, acknowledging that petitioner’s

brickyard was “a business, lawful in itself,” and that the clay

found on petitioner’s property could not be economically

transported elsewhere, nevertheless ruled that the business

could be terminated by the lawful exercise of the police

power, “one of the most essential powers of government, one

that is the least limitable.” 239 U.S. at 410. This Court

therefore affirmed the California Supreme Court, which, it

pointed out, had decided the case “from the standpoint of

the offensive effects of the brickyard and not from the

deprivation of the deposits of clay....” 239 U.S. at 411.

Hadacheck thus echoes, although it does not cite, a case

decided one year earlier, Atlantic Coast Line Railroad Co. v.

City of Goldsboro, 232 U.S. 548 (1914), wherein this Court

opined that “the State, in the exercise of the police power, may

legitimately extend the application of the principle that under-

lies the maxim sic utere tuo ut alienum non laedas, so far as may

be requisite for the protection of the public.” Jd. at 558.

In Keystone the dissenting opinion suggested that the

nuisance exception applied only to “misuses” of property, not

“legal” uses. See Keystone, supra, at 512 (Rehnquist, C.J.,

dissenting). There is, however, no clearcut and controlling

distinction between a “legal use” and a “misuse” of property.

18

Curtin v. Benson, 222 U.S. 78 (1911), does not establish such

a dichotomy because there the use, grazing cattle, was legal

and did not cause any harm. Hadacheck, decided after

Curtin v. Benson, expressly rejected the argument that “a

necessary and lawful occupation that is not a nuisance per

se cannot be made so by legislative declaration.” 239 U.S. at

410. The police power allows the State “to declare that in

particular circumstances and in particular localities a livery

stable shall be deemed a nuisance in fact and a nuisance in

law.” Id. at 411 (quoting Reinman v. Little Rock, 237 U.S.

171 [1915]). See also Goldblatt v. Town of Hempstead, 369

U.S. 590 (1962), a hazard-related case in which the town

prohibited sand and gravel mining below the water table to

prevent formation of dangerous pools of water. Petitioner’s

land had no other apparent economic use. This Court, rely-

ing on, inter alia, Hadacheck, Reinman and Mugler, ruled

that an otherwise valid exercise of the police power that

deprives property of its most beneficial use is not

unconstitutional.

Thus, under this theory, even certain residential develop-

ment, because of untoward effects, can be prohibited as a

nuisance in fact and in law. In Village of Euclid ». Ambler

Realty Co., 272 U.S. 365, 395-396 (1926), the Court stated

that apartment houses, while highly desirable in the pr» or

environment, “come very near to being nuisances” in areas

dedicated to private homes. The question is one of effects.

This being so, development that is destructive to an essen-

tial safety feature of a barrier island can rightly be deemed

a nuisance. See McNulty v. Town of Indialantic, 727 F Supp.

604 (M.D. Fla. 1989) (upholding ordinance prohibiting

residential structures seaward of setback line). See also

McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 264

P.2d 932 (Cal. 1954) (sustaining zoning ordinance that

restricted oceanfront property to beach recreation uses be-

cause site was subject to erosion and wave damage and

safety of residences would be in question).

19

Under the foregoing authority, state and local govern-

ments have always had broad powers to prevent or abate

harmful uses of property. They must retain the authority to

deny development that has harmful effects without fear of

incurring massive liability. This fear is of particular concern

in view of their liability under First English, supra, for even

temporary takings. Petitioner’s reformulation of takings

jurisprudence would require compensation whenever a

property owne+ cannot use his land without causing serious

harm. Given the tendency of many developers to propose

high density development as the only feasible economic use

of their land, such a principle could be devastating to

government. See, e.g., Graham v. Estuary Properties, Inc.,

399 So.2d 1374 (Fla. 1981), cert denied sub nom., Taylor v.

Graham, 454 U.S. 1083 (1981) (proposing 26,500 dwelling

units on 1,800 acres of mangroves as the only viable use).

Many governments, fearful of having to purchase such land

at its “highest and best use,” may well abandon effective

regulation. Historically, however, the principle has been

clear: government is not compelled to regulate by purchase.

Andrus v. Allard, 441 U.S. 51, 65 (1979).

C. The Petitioner Has Not Proved A Taking, Having

Conceded That Building On The Beach/Dune

System Would Be Harmful.

The Beachfront Management Act, if implemented, will

protect lives, property and other resources. The petitioner

conceded as much in the proceedings below. The record

shows that the Lucas property lies foursquare on the area

of the beach that the Act is intended to protect. It could not

be more exposed to storms and hurricanes. Just within the

last three years, Hurricane Hugo caused many deaths and

billions of dollars in property damage along the coast of

South Carolina and created a twenty-foot storm surge that

swept across three barrier islands. See notes 9 and 10, supra.

20

There is no disputing that construction of permanent

buildings on the beach/dune system constitutes a clearcut

danger not just to the individuals who occupy those struc-

tures but to those landward whose protection against flood-

ing is reduced and whose exposure to wind-driven debris

materially increased. The petitioner never sought to join

issue on these facts when he filed his lawsuit to compel

purchase of the lots. He did not begin to meet his burden of

proof to show that the law was unreasonable. See Goldblatt

supra, at 596 (exercise of the police power is presumed to be

constitutionally valid, and burden is on one challenging

ordinance to prove it unreasonable). The single question the

petitioner posited in the absence of any challenge to either

the purposes of the South Carolina law or whether those

purposes were served by the denial of permanent structures

on his property was simply whether he was entitled to

compensation. This Court addressed precisely such a claim

in Keystone:

“(T]he issue of compensation cannot arise until the

question of justification has been disposed of. In

the typical nuisance prevention case, the question

is resolved against the claimant.”

480 US. at 492 n. 22, quoting R. Epstein, Takings (1985).

Petitioner conceded justification. He has not, therefore,

proved a taking, and he is not, therefore, entitled to

compensation.

D. Laws Intended To Prevent Harmful Uses Of

Property Are Constitutional If Not Unnecessari-

ly Harsh, But The State’s Determination Of

Legitimate Public Purposes Is Entitled To Sub-

stantial Judicial Deference.

The amici States acknowledge that government is not free

to act arbitrarily in the exercise of the police power to

21

prevent harms. Although the judiciary does not “sit as a

‘superlegislature to weigh the wisdom of legislation,’” Exxon

Corp. v. Governor of Maryland, 437 U.S. 117, 124 (1978)

(quoting Ferguson v. Skrupa, 372 U.S. 726, 731 [1963]), it

may nevertheless examine a law to determine whether it

“bears a reasonable relation” to a “legitimate government

purpose.” Exxon Corp., supra, at 124-125. Under the Fifth

Amendment Takings Clause, the court has indicated that

the law must “substantially advance a legitimate state

interest.” Nollan v. California Coastal Comm'n, 483 U.S.

825 (1987). The concern for public health and safety may not

be invoked to justify means not reasonably — or in this case

substantially — related to the achievement of public protec-

tion, and unnecessary harshness in such means should not

survive the test.

Such a test is consistent with Pennsylvania Coal. When

Justice Holmes wrote of a “regulation [that] goes too far” he

was speaking of its character, not the degree of restriction,

for, as an example, he pointed to the permissible destruction

of a house to stop a conflagration. It is the nature of a

regulation that is critical. Keystone, supra, at 488.

There can be no question that prohibition of permanent

buildings on the beach/dune system substantially advances

the interests embodied in the South Carolina Beachfront

Management Act and other state laws for the protection of

coastal areas. There is uncontradicted evidence in the record

that South Carolina’s “inlet erosion zones” and “standard

erosion zones” have very different patterns of erosion and

accretion and that inlet erosion zones can rapidly erode and

accrete over hundreds of feet. Although harsh, the prohibitions

22

<i

of the 1988 Act are not unnecessarily so. Until now, the

Petitioner has not even attempted a contrary argument.!®

Likewise, there can be no question as to the legitimacy

under the police power of the purposes served by the Act.

Although the petitioner now questions those purposes, the

States submit that this Court has historically deferred to

the legislative branch of government on this issue, and that

such deference is in order here. In the exercise of the police

power, “the largest discretion is allowed.” Mugler, supra at

669, quoting Stone v. Mississippi, 101 U.S. 814 (1880). See

also, Hadacheck, supra, at 410; Goldblatt, supra, at 596;

Reinman, supra, at 177; Powell v. Pennsylvania, 127 U:S.

678, 685 (1888). A legislature may decide one class of property

13. In contrast, Nollan, supra, involved the notion that requiring an

oceanfront property owner to dedicate an easement to the public over his

private beach area would somehow promote “visual access” to the beach

from the public road on the opposite side of the property and thus promote

public access to the public part of the beach. The Court rejected this

contention.

More on point, state courts, for exam ple, have recognized that flood

hazards may justify a prohibition on residential and other construction.

See, e.g., Maple Leaf Inv., Inc. v. State Dept. of Ecology, 88 Wash.2d 726

565 P.2d 1162 (1977); Turnpike Realty Co. v. Town of Dedham, 362 Mass.

221, 284 N.E.2d 891 , _/2), cert. denied, 409 U.S. 1108 (1973): First

English v. County of Los Angeles, 210 Cal.App.3d 1353, 258 Cal. Kptr. 893

(Cal.App. 1989), cert. denied, 493 U.S. 1056 (1990): Turner v. County of

Del Norte, 24 Cal.App.3d 311, 101 Cal. Rptr. 93 (Cal.App. 1972). See also

Pope v. City of Atlanta, 242 Ga. 331, 249 S.E.2d 16 (1978). cert. denied,

440 U.S. 936 (1979); Usdin v. State, Dept. of Envtl. Protection, 173

N.J.Super. 311, 414 A.2d 280 (1980), aff'd, 430 A.2d 949 (N.J. 1981). State

courts have also upheld the denial of permits, reasoning thot certain

property is inherently unsuited to development. State of New Hampshire

Wetlands Bd. ». Marshall, 127 N.H. 240, 500 A.2d 685, 68U (1985):

Claridge v. New Hampshire Wetlands Board, 125 N.H. 745, 485 A.2d 287

(1984); Rowe v. Town North Hampton, 131 N.H. 424, 553 A.2d 1331

(1989); Just v. Marinette County, 56 Wisc.2d 7, 201 N.W.2d 761 (1972):

Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327

(1984); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.). cert

dented sub. nom., Taylor v. Graham, 454 U.S. 1083 (1981). |

23

(infected cedars) must be destroyed to save another (apple

trees), and the Court need not “weigh with nicety the ques-

tion whether the infected cedars constitute a nuisance ac-

cording to common law; or whether they may be so declared

by statute.” Miller v. Schoene, supra, at 279-280.

The Court’s recent decision in Keystone reaffirmed this

deference, noting that the lower courts in that case “were

both convinced that the legislative purposes set forth in the

statute were genuine, substantial, and legitimate, and we

have no reason to conclude otherwise.” 480 U.S. at 486.

Although a court may examine a statute to determine

whether its details call into question its stated public pur-

poses, id. at 487 n. 16, no such inquiry was sought in the

lower courts in this case and none should be undertaken

now. As Justice Stevens has written, “[a] presumption of

validity is particularly appropriate...because the complaint

did not even allege that the ordinance is invalid, or pray for

a declaration of invalidity or an injunction against its enfor-

cement.” First English Evangelical Lutheran Church,

supra, at 327 (Stevens, J., dissenting).

Ill. EVEN IF THE ACT DOES NOT PREVENT

A NUISANCE USE OF PROPERTY,

PETITIONER SHOULD NOT BE ENTITLED

TO COMPENSATION ON THIS RECORD.

Should the Court decide that Mugler principles are not

controlling here and that it should proceed itself with the

ad hoc inquiry of Penn Central Transp. Co. v. City of New

York, 438 U.S. 104, 124 (1978), there are a number of facts

that suggest Mr. Lucas is not entitled to compensation, or

at least to the amount the trial court awarded. The three

factors considered under the ad hoc inquiry are: (1) the

character of the government action; (2) the extent to which

the regulation has interfered with distinct investment-backed

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expecta tions; and (3) the economic impact of the regulation

on the claimant. Jd. at 124. These factors do not weigh in

petitioner’s favor.

First, the Act, as Mr. Lucas conceded, protects lives and

property, a most compelling state interest. He had the bur-

den to prove a law passed as a safety measure was un-

reasonable, Goldblatt, supra, and he did not attempt to do

so. The law is therefore presumed constitutional. Jd.

Second, Mr. Lucas knew that the area has been, and

continues to be, subject to erosion. Revetments have been

constructed to the east and west of his lots to control erosion.

Those lots have been part of the active beach fifty percent of

the time for the last forty years (R. 84). Within the last thirty

years, the shoreline lay landward of the Lucas property;

within the last twenty years, the lots remained at least

partly ponded; within the last ten years, the erosion of a

neighboring oceanfront house was prevented only by emer-

gency action. Under the 1977 Act, the front dune of a beach

was part of the “critical area” in which habitable structures

were prohibited. Given the history and instability of this

area, landward migration of the critical area was easily

foreseeable. In view of his lengthy involvement with the

development of Wild Dunes Mr. Lucas should have known

that habitable structures on the lots would be highly ex-

posed to storms and hurricanes. It was not reasonable for

Mr. Lucas to have concluded that residential use was the

“highest and best use” or even a feasible use of these lots.

“[|D]istinct investment-backed expectations are reasonable

only if they take into account the power of the state to

regulate in the public interest.” Pace Resources, Inc. v.

Shrewsbury Township, 808 F.2d 1023, 1033 (3d Cir. 1987).

His investment-backed expectation was highly uncertain

from the beginning.

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The trial court’s conclusions as to economic impact are

questionable. Courts have concluded that oceanfront land

retains substantial value even if habitable structures can-

not be built thereon. McNulty, supra, at 608. Diminution in

value alone does not constitute a taking. Penn Central,

supra, at 131. Mr. Lucas’ right to put a trailer on the

property has, in similar circumstances, been deemed a

reasonable use sufficient to withstand a takings claim. See

Hall v. Board of Environmental Protection, 528 A.2d 453

(Me. 1987) (construing state constitution).

The finding that the two lots were worth $1,170,000 is

particularly unpersuasive, and diminution in value should

not be measured from this inflated figure. Much of the value

of these lots for construction purposes, as with any property

in exposed and hazardous areas, is largely owed to suppor-

tive (and likewise vulnerable) public infrastructure, avail-

able disaster relief and publicly subsidized flood insurance.

See National Flood Insurance Program, 42 U.S.C. §§ 4001-

4128. The innate value of the lots for other purposes remains

undisturbed. If value the government itself has created

must be adjusted through regulations in order to protect

public health and safety, loss of this value should not be

considered a taking; nor should loss of value that is based

on a harmful use. Government should not have to pay

compensation for the choices it must make to resolve con-

flicting demands, and to protect some rather than others.

See Sax, supra, at 153-161; Miller v. Schoene, supra. See also

Anderson, Takings and Expectations: Toward a “Broader

Vision” of Property Rights, 37 Kan. L. R. 529 (1989). The Act

is a clear decision to afford less public support to the most

vulnerable property (note the Act’s restrictions on rebuild-

ing in the dune area, § 48-39-290) and more protection to

inland dwellers.

26

Decisions about public safety are the most important and

basic the government makes and they should not be dis-

placed by courts in the absence of an appropriate record.

Hurricanes and severe storms are deadiy phenomena.

Government cannot in circumstances such as these protect

everyone, but doing nothing is simply an abdication of its

fundamental responsibility to the larger community. It must

not be required to pay compensation because of a neces-

sary choice.

CONCLUSION

This appeal should be dismissed. In the alternative, the

judgment may be vacated to enable petitioner to apply fora

building permit pursuant to the 1988 and 1990

amendments.

ROBERT A. BUTTERWORTH

Attorney General of Florida

LOUIS F. HUBENER

Assistant Attorney General

Counsel of Record

DEPARTMENT OF LEGAL AFFAIRS

The Capitol — Suite 1502

Tallahassee, FL 32399-1050

(904) 488-9935

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