DAVID H. LUCAS,
PETITIONER v.
505
JUSTICE SCALIA delivered the opinion of the Court.
[***LEdHR1A] [1A]In 1986, petitioner David H. Lucas paid $
975,000 for two residential lots on the Isle of Palms in
I
A
South Carolina's expressed
interest in intensively managing development activities in the so-called
"coastal zone" dates from 1977 when, in the aftermath of Congress's passage
of the federal Coastal Zone Management Act of 1972, 86 Stat. 1280, as amended,
16 U.S.C. § 1451 et seq., the
legislature enacted a Coastal Zone Management Act of its own. See S. C. Code Ann. §
48-39-10 et seq. (1987). In its original form, the South Carolina
Act required owners of coastal zone
[***808] land that qualified as a
"critical area" (defined in the legislation to include beaches and
immediately adjacent sand dunes,
[*1008] § 48-39-10(J)) to obtain a permit from the
newly created South Carolina Coastal Council (Council) (respondent here) prior
to committing the land to a "use other than the use the critical area was
devoted to on [September 28, 1977]." §
48-39-130(A).
In the late 1970's, Lucas and
others began extensive residential development of the Isle of Palms, a barrier
island situated eastward of the city of
The Beachfront Management Act
brought Lucas's plans to an abrupt end. Under that 1988 legislation, the
Council was directed to establish a "baseline" connecting the
landwardmost "points of erosion . . . during the past forty years" in
the region of the Isle of Palms that includes Lucas's lots. S. C. Code Ann.
§ 48-39-280(A)(2) (Supp. 1988). n1 In
action not challenged here, the Council fixed this baseline landward of Lucas's
parcels. That was significant, for under the Act [*1009]
construction of occupyable improvements n2 was flatly prohibited seaward
of a line drawn [**2890] 20 feet landward of, and parallel to, the
baseline. § 48-39-290(A). The Act
provided no exceptions.
n1 This specialized historical method of determining
the baseline applied because the Beachwood East subdivision is located adjacent
to a so-called "inlet erosion zone" (defined in the Act to mean
"a segment of shoreline along or adjacent to tidal inlets which are
directly influenced by the inlet and its associated shoals," S. C. Code
Ann. § 48-39-270(7) (Supp. 1988)) that
is "not stabilized by jetties, terminal groins, or other structures,"
§ 48-39-280(A)(2). For areas other than
these unstabilized inlet erosion zones, the statute directs that the baseline
be established along "the crest of an ideal primary oceanfront sand
dune." § 48-39-280(A)(1).
n2 The Act did allow the construction of certain
nonhabitable improvements, e.g., "wooden walkways no larger in
width than six feet," and "small wooden decks no larger than one
hundred forty-four square feet." § §
48-39-290(A)(1) and (2).
B
Lucas promptly filed suit in the
South Carolina Court of Common Pleas, contending that the Beachfront Management
Act's construction bar effected a taking of his property without just
compensation. Lucas did not take issue with the validity of the Act as a lawful
exercise of South Carolina's police power, but contended that the Act's
complete extinguishment of his property's value entitled him to compensation
regardless of whether the legislature had acted in furtherance of legitimate
police power objectives. Following a bench trial, the court agreed. Among its
factual determinations was the finding that "at the time Lucas purchased
the two lots, [***809] both were zoned for single-family residential
construction and . . . there were no restrictions imposed upon such use of the
property by either the State of South Carolina, the County of Charleston, or
the Town of the Isle of Palms." App. to Pet. for Cert. 36. The trial court
further found that the Beachfront Management Act decreed a permanent ban on
construction insofar as Lucas's lots were concerned, and that this prohibition
"deprived Lucas of any reasonable economic use of the lots, . . .
eliminated the unrestricted right of use, and rendered them valueless." Id.,
at 37. The court thus concluded that Lucas's properties had been
"taken" by operation of the Act, and it ordered respondent to pay
"just compensation" in the amount of $ 1,232,387.50. Id., at
40.
The Supreme Court of South
Carolina reversed. It found dispositive what it described as Lucas's concession
"that the [*1010] Beachfront Management Act [was] properly and
validly designed to preserve . . . South Carolina's beaches." 304 S.C.
376, 379, 404 S.E.2d 895, 896 (1991). Failing an attack on the validity of the
statute as such, the court believed itself bound to accept the
"uncontested . . . findings" of the South Carolina Legislature that
new construction in the coastal zone -- such as petitioner intended -- threatened
this public resource. Id., at
383, 404 S.E.2d at 898. The court ruled that when a regulation respecting the
use of property is designed "to prevent serious public harm," id.,
at 383, 404 S.E.2d at 899 (citing, inter alia, Mugler v. Kansas, 123
U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887)), no compensation is owing under
the Takings Clause regardless of the regulation's effect on the property's
value.
Two justices dissented. They
acknowledged that our Mugler line of cases recognizes governmental power
to prohibit "noxious" uses of property -- i.e., uses of
property akin to "public nuisances" -- without having to pay
compensation. But they would not have characterized the Beachfront Management
Act's "primary purpose [as] the prevention of a nuisance." 304
S.C. at 395, 404 S.E.2d at 906 (Harwell, J., dissenting). To the dissenters,
the chief purposes of the legislation, among them the promotion of tourism and
the creation of a "habitat for indigenous flora and fauna," could not
fairly be compared to nuisance abatement.
Id., at 396, 404 S.E.2d at 906. As a consequence, they would have
affirmed the trial court's conclusion that the Act's obliteration of the value
of petitioner's lots accomplished a taking.
We granted certiorari. 502 U.S. 966 (1991).
II
[***LEdHR2A] [2A]As a threshold matter, we must briefly
address the Council's suggestion that this case is inappropriate for plenary
review. After briefing and argument before the South Carolina Supreme Court,
but prior to issuance of that court's opinion, the Beachfront Management Act
was amended to [*1011] authorize the Council, in certain circumstances, [**2891]
to issue "special permits" for the construction or
reconstruction of habitable structures seaward of the baseline. See S. C. Code
Ann. § 48-39-290(D)(1) (Supp. 1991).
According to the Council, this amendment renders Lucas's claim of a permanent
deprivation unripe, as Lucas may yet be able to secure permission to build on
his property. "[The Court's] cases," we [***810]
are reminded, "uniformly reflect an insistence on knowing the
nature and extent of permitted development before adjudicating the
constitutionality of the regulations that purport to limit it." MacDonald,
Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 91 L. Ed. 2d 285, 106
S. Ct. 2561 (1986). See also Agins v. City of Tiburon, 447 U.S. 255,
260, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980). Because petitioner "has not
yet obtained a final decision regarding how [he] will be allowed to develop
[his] property," Williamson County Regional Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 190, 87 L. Ed. 2d 126, 105 S. Ct. 3108
(1985), the Council argues that he is not yet entitled to definitive
adjudication of his takings claim in this Court.
We think these considerations
would preclude review had the South Carolina Supreme Court rested its judgment
on ripeness grounds, as it was (essentially) invited to do by the Council. See
Brief for Respondent 9, n.3. The South Carolina Supreme Court shrugged off the
possibility of further administrative and trial proceedings, however,
preferring to dispose of Lucas's takings claim on the merits. Cf., e.g., San
Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 631-632, 67 L. Ed.
2d 551, 101 S. Ct. 1287 (1981). This unusual disposition does not preclude
Lucas from applying for a permit under the 1990 amendment for future
construction, and challenging, on takings grounds, any denial. But it does
preclude, both practically and legally, any takings claim with respect to
Lucas's past deprivation, i.e., for his having been denied
construction rights during the period before the 1990 amendment. See generally First
English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987) (holding that [*1012]
temporary deprivations of use are compensable under the Takings Clause).
Without even so much as commenting upon the consequences of the South Carolina
Supreme Court's judgment in this respect, the Council insists that permitting
Lucas to press his claim of a past deprivation on this appeal would be
improper, since "the issues of whether and to what extent [Lucas] has
incurred a temporary taking . . . have simply never been addressed." Brief
for Respondent 11. Yet Lucas had no reason to proceed on a "temporary
taking" theory at trial, or even to seek remand for that purpose prior to
submission of the case to the South Carolina Supreme Court, since as the Act
then read, the taking was unconditional and permanent. Moreover, given the
breadth of the South Carolina Supreme Court's holding and judgment, Lucas would
plainly be unable (absent our intervention now) to obtain further state-court
adjudication with respect to the 1988-1990 period.
[***LEdHR2B] [2B] [***LEdHR3A] [3A]In these circumstances, we think it would
not accord with sound process to insist that Lucas pursue the late-created
"special permit" procedure before his takings claim can be considered
ripe. Lucas has properly alleged Article III injury in fact in this case, with
respect to both the pre-1990 and post-1990 constraints placed on the use of his
parcels by the Beachfront Management Act. n3 That there is a discretionary [*1013]
[***811] "special
permit" [**2892] procedure by which he may regain -- for the
future, at least -- beneficial use of his land goes only to the prudential
"ripeness" of Lucas's challenge, and for the reasons discussed we do
not think it prudent to apply that prudential requirement here. See Esposito
v. South Carolina Coastal Council, 939 F.2d 165, 168 (CA4 1991), cert.
denied, post, 505 U.S. 1219. n4 We leave for decision on remand, of
course, the questions left unaddressed by the South [*1014]
Carolina Supreme Court as a consequence of its categorical disposition.
n5
[***LEdHR2C] [2C]
n3 JUSTICE BLACKMUN insists that this aspect of
Lucas's claim is"not justiciable," post, 505 U.S. at 1042,
because Lucas never fulfilled his obligation under Williamson County
Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 87
L. Ed. 2d 126, 105 S. Ct. 3108 (1985), to "submit a plan for development
of [his] property" to the proper state authorities, id., at 187.
See post, 505 U.S. at 1043. But such a submission would have been
pointless, as the Council stipulated below that no building permit would have
been issued under the 1988 Act, application or no application. Record 14
(stipulations). Nor does the peculiar posture of this case mean that we are
without Article III jurisdiction, as JUSTICE BLACKMUN apparently believes. See post,
505 U.S. at 1042, and n.5. Given the South Carolina Supreme Court's dismissive
foreclosure of further pleading and adjudication with respect to the pre-1990
component of Lucas's takings claim, it is appropriate for us to address that
component as if the case were here on the pleadings alone. Lucas properly
alleged injury in fact in his complaint. See App. to Pet. for Cert. 154
(complaint); id., at 156 (asking "damages for the temporary taking
of his property" from the date of the 1988 Act's passage to "such
time as this matter is finally resolved"). No more can reasonably be
demanded. Cf. First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.
304, 312-313, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987). JUSTICE BLACKMUN finds
it "baffling," post, 505 U.S. at 1043, n.5, that we grant
standing here, whereas "just a few days ago, in Lujan v. Defenders of
Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992)," we
denied standing. He sees in that strong evidence to support his repeated
imputations that the Court "presses" to take this case, post,
505 U.S. at 1036, is "eager to decide" it, post, 505 U.S. at
1045, and is unwilling to "be denied," post, 505 U.S. at 1042.
He has a point: The decisions are indeed very close in time, yet one grants
standing and the other denies it. The distinction, however, rests in law rather
than chronology. Lujan, since it involved the establishment of injury in
fact at the summary judgment stage, required specific facts to be
adduced by sworn testimony; had the same challenge to a generalized allegation
of injury in fact been made at the pleading stage, it would have been
unsuccessful.
n4 In that case, the Court of Appeals for the Fourth
Circuit reached the merits of a takings challenge to the 1988 Beachfront
Management Act identical to the one Lucas brings here even though the Act was
amended, and the special permit procedure established, while the case was under
submission. The court observed:
"The enactment of the 1990 Act during the
pendency of this appeal, with its provisions for special permits and other
changes that may affect the plaintiffs, does not relieve us of the need to
address the plaintiffs' claims under the provisions of the 1988 Act. Even if
the amended Act cured all of the plaintiffs' concerns, the amendments would not
foreclose the possibility that a taking had occurred during the years when the
1988 Act was in effect." Esposito v. South Carolina Coastal Council,
939 F.2d 165, 168 (1991).
[***LEdHR3B] [3B]
n5 JUSTICE BLACKMUN states that our "intense
interest in Lucas' plight . . . would have been more prudently expressed by
vacating the judgment below and remanding for further consideration in light of
the 1990 amendments" to the Beachfront Management Act. Post, 505
U.S. at 1045, n.7. That is a strange suggestion, given that the South Carolina
Supreme Court rendered its categorical disposition in this case after
the Act had been amended, and after it had been invited to consider the
effect of those amendments on Lucas's case. We have no reason to believe that
the justices of the South Carolina Supreme Court are any more desirous of using
a narrower ground now than they were then; and neither "prudence" nor
any other principle of judicial restraint requires that we remand to find out
whether they have changed their mind.
[***812] III
A
Prior to Justice Holmes's
exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. Ed.
322, 43 S. Ct. 158 (1922), it was generally thought that the Takings Clause
reached only a "direct appropriation" of property, Legal Tender
Cases, 79 U.S. (12 Wall.) 457, 551, 20 L. Ed. 287 (1871), or the functional
equivalent of a "practical ouster of [the owner's] possession," Transportation
Co. v. Chicago, 99 U.S. 635, 642, 25 L. Ed. 336 (1879). See also Gibson
v. United States, 166 U.S. 269, 275-276, 41 L. Ed. 996, 17 S. Ct. 578
(1897). Justice Holmes recognized in Mahon, however, that if the
protection against physical appropriations of private property was to be
meaningfully enforced, the government's power to redefine the range of
interests included in the ownership of property was necessarily constrained by
constitutional limits. 260 U.S. at
414-415. If, instead, the uses of private property were subject to unbridled,
uncompensated qualification
[**2893] under the police power,
"the natural tendency of human nature [would be] to extend the
qualification more and more until at last private property disappeared." Id.,
at 415. These considerations gave birth
in that case to the oft-cited maxim that, "while property may be regulated
to a certain extent, if regulation goes too far it will be recognized as a
taking." Ibid.
[*1015]
Nevertheless, our decision in Mahon offered little insight into
when, and under what circumstances, a given regulation would be seen as going
"too far" for purposes of the Fifth Amendment. In 70-odd years of
succeeding "regulatory takings" jurisprudence, we have generally
eschewed any "'set formula'" for determining how far is too far,
preferring to "engage in . . . essentially ad hoc, factual
inquiries." Penn Central Transportation Co. v. New York City, 438
U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978) (quoting Goldblatt v.
Hempstead, 369 U.S. 590, 594, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962)). See
Epstein, Takings: Descent and Resurrection, 1987 S. Ct. Rev. 1, 4. We have,
however, described at least two discrete categories of regulatory action as
compensable without case-specific inquiry into the public interest advanced in
support of the restraint. The first encompasses regulations that compel the
property owner to suffer a physical "invasion" of his property. In
general (at least with regard to permanent invasions), no matter how minute the
intrusion, and no matter how weighty the public purpose behind it, we have
required compensation. For example, in Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982), we
determined that New York's law requiring landlords to allow television cable
companies to emplace cable facilities in their apartment buildings constituted
a taking, id., at 435-440, even though the facilities occupied at most
only 1 1/2 cubic feet of the landlords' property, see id., at 438, n.16.
See also United States v. Causby, 328 U.S. 256, 265, 90 L. Ed. 1206, 66
S. Ct. 1062, and n.10 (1946) (physical invasions of airspace); cf. Kaiser Aetna v. United States, 444
U.S. 164, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979) (imposition of [***813]
navigational servitude upon private marina).
[***LEdHR4A] [4A]The second situation in which we have
found categorical treatment appropriate is where regulation denies all
economically beneficial or productive use of land. See Agins, 447 U.S.
at 260; see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834,
97 L. Ed. 2d 677, 107 S. Ct. 3141
(1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,
495, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987); Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264, 295-296, 69 L. Ed. 2d
1, 101 S. Ct. 2352 [*1016] (1981). n6 As we have said on numerous
occasions, [**2894] the Fifth Amendment is violated when land-use
regulation "does not substantially advance legitimate state interests or
denies an owner economically viable use of his land." Agins, supra,
at 260 (citations omitted) (emphasis added). n7
[***LEdHR4B] [4B]
n6 We will not attempt to respond to all of JUSTICE
BLACKMUN's mistaken citation of case precedent. Characteristic of its nature is
his assertion that the cases we discuss here stand merely for the proposition
"that proof that a regulation does not deny an owner economic use
of his property is sufficient to defeat a facial takings challenge" and
not for the point that "denial of such use is sufficient to
establish a takings claim regardless of any other consideration." Post,
505 U.S. at 1050, n.11. The cases say, repeatedly and unmistakably, that
"'the test to be applied in considering [a] facial [takings] challenge is
fairly straightforward. A statute regulating the uses that can be made of
property effects a taking if it "denies an owner economically viable
use of his land."'" Keystone, 480 U.S. at 495 (quoting Hodel,
452 U.S. at 295-296 (quoting Agins, 447 U.S. at 260)) (emphasis added).
JUSTICE BLACKMUN describes that rule (which we do not invent but merely apply
today) as "altering the long-settled rules of review" by foisting on
the State "the burden of showing [its] regulation is not a taking." Post,
505 U.S. at 1045, 1046. This is of course wrong. Lucas had to do more than
simply file a lawsuit to establish his constitutional entitlement; he had to
show that the Beachfront Management Act denied him economically beneficial use
of his land. Our analysis presumes the unconstitutionality of state land-use
regulation only in the sense that any rule with exceptions presumes the
invalidity of a law that violates it -- for example, the rule generally
prohibiting content-based restrictions on speech. See, e.g., Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105,
115, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991) ("A statute is presumptively
inconsistent with the First Amendment if it imposes a financial burden on
speakers because of the content of their speech"). JUSTICE BLACKMUN's real
quarrel is with the substantive standard of liability we apply in this case, a
long-established standard we see no need to repudiate.
n7 Regrettably, the rhetorical force of our
"deprivation of all economically feasible use" rule is greater than
its precision, since the rule does not make clear the "property
interest" against which the loss of value is to be measured. When, for
example, a regulation requires a developer to leave 90% of a rural tract in its
natural state, it is unclear whether we would analyze the situation as one in
which the owner has been deprived of all economically beneficial use of the
burdened portion of the tract, or as one in which the owner has suffered a mere
diminution in value of the tract as a whole. (For an extreme -- and, we think,
unsupportable -- view of the relevant calculus, see Penn Central
Transportation Co. v. New York City, 42 N.Y.2d 324, 333-334, 366 N.E.2d
1271, 1276-1277, 397 N.Y.S.2d 914 (1977), aff'd, 438 U.S. 104, 57 L. Ed. 2d
631, 98 S. Ct. 2646 (1978), where the state court examined the diminution in a
particular parcel's value produced by a municipal ordinance in light of total
value of the takings claimant's other holdings in the vicinity.)
Unsurprisingly, this uncertainty regarding the composition of the denominator
in our "deprivation" fraction has produced inconsistent
pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 414, 67 L. Ed. 322, 43 S. Ct. 158 (1922) (law restricting subsurface
extraction of coal held to effect a taking), with Keystone Bituminous Coal
Assn. v. DeBenedictis, 480 U.S. 470, 497-502, 94 L. Ed. 2d 472, 107 S. Ct.
1232 (1987) (nearly identical law held not to effect a taking); see also id.,
at 515-520 (REHNQUIST, C. J., dissenting); Rose, Mahon Reconstructed:
Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561, 566-569
(1984). The answer to this difficult question may lie in how the owner's
reasonable expectations have been shaped by the State's law of property -- i.e.,
whether and to what degree the State's law has accorded legal recognition and
protection to the particular interest in land with respect to which the takings
claimant alleges a diminution in (or elimination of) value. In any event, we
avoid this difficulty in the present case, since the "interest in
land" that Lucas has pleaded (a fee simple interest) is an estate with a
rich tradition of protection at common law, and since the South Carolina Court
of Common Pleas found that the Beachfront Management Act left each of Lucas's
beachfront lots without economic value.
[*1017]
[***814] We have never set forth
the justification for this rule. Perhaps it is simply, as Justice Brennan
suggested, that total deprivation of beneficial use is, from the landowner's
point of view, the equivalent of a physical appropriation. See San Diego Gas
& Electric Co. v. San Diego, 450 U.S. at 652 (dissenting opinion).
"For what is the land but the profits thereof[?]" 1 E. Coke,
Institutes, ch. 1, § 1 (1st Am. ed.
1812). Surely, at least, in the extraordinary circumstance when no
productive or economically beneficial use of land is permitted, it is less realistic
to indulge our usual assumption that the legislature is simply "adjusting
the benefits and burdens of economic life," Penn Central Transportation
Co., [*1018] 438 U.S. at 124, in a manner that secures an
"average reciprocity of advantage" to everyone concerned, Pennsylvania
Coal Co. v. Mahon, 260 U.S. at 415. And the functional basis for
permitting the government, by regulation, to affect property values without
compensation -- that "Government hardly could go on if to some extent
values incident to property could not be diminished without paying for every
such change in the general law," id., at 413 -- does not apply to
the relatively rare situations where the government has deprived a landowner of
all economically beneficial uses.
On the other side of the balance,
affirmatively supporting a compensation requirement, is the fact that
regulations that leave the owner of land without economically beneficial or
productive options for its use -- typically,
[**2895] as here, by requiring
land to be left substantially in its natural state -- carry with them a
heightened risk that private property is being pressed into some form of public
service under the guise of mitigating serious public harm. See, e.g.,
Annicelli v. South Kingstown, 463 A.2d 133, 140-141 (R. I. 1983)
(prohibition on construction adjacent to beach justified on twin grounds of
safety and "conservation of open space"); Morris County Land
Improvement Co. v. Parsippany-Troy Hills Township, 40 N.J. 539, 552-553,
193 A.2d 232, 240 (1963) (prohibition on filling marshlands imposed in order to
preserve region as water detention basin and create wildlife refuge). As
Justice Brennan explained: "From the government's point of view, the
benefits flowing to the public from preservation of open space through
regulation may be equally great as from creating a wildlife refuge through
formal condemnation or increasing electricity production [***815]
through a dam project that floods private property." San Diego
Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes
on the books, both state and federal, that
[*1019] provide for the use of
eminent domain to impose servitudes on private scenic lands preventing
developmental uses, or to acquire such lands altogether, suggest the practical
equivalence in this setting of negative regulation and appropriation. See, e.g.,
16 U.S.C. § 410ff-1(a) (authorizing
acquisition of "lands, waters, or interests [within Channel Islands
National Park] (including but not limited to scenic easements)"); § 460aa-2(a) (authorizing acquisition of
"any lands, or lesser interests therein, including mineral interests and
scenic easements" within Sawtooth National Recreation Area); § § 3921-3923 (authorizing acquisition of
wetlands); N. C. Gen. Stat. § 113A-38
(1990) (authorizing acquisition of, inter alia, "'scenic
easements'" within the North Carolina natural and scenic rivers system);
Tenn. Code Ann. § § 11-15-101 to
11-15-108 (1987) (authorizing acquisition of "protective easements"
and other rights in real property adjacent to State's historic, architectural,
archaeological, or cultural resources).
[***LEdHR4C] [4C] [***LEdHR5A] [5A]We think, in short, that there are good
reasons for our frequently expressed belief that when the owner of real
property has been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking. n8
[***LEdHR5B] [5B]
n8 JUSTICE STEVENS criticizes the "deprivation of
all economically beneficial use" rule as "wholly arbitrary," in
that "[the] landowner whose property is diminished in value 95% recovers
nothing," while the landowner who suffers a complete elimination of value
"recovers the land's full value." Post, 505 U.S. at 1064. This
analysis errs in its assumption that the landowner whose deprivation is one
step short of complete is not entitled to compensation. Such an owner might not
be able to claim the benefit of our categorical formulation, but, as we have
acknowledged time and again, "the economic impact of the regulation on the
claimant and . . . the extent to which the regulation has interfered with
distinct investment-backed expectations" are keenly relevant to takings
analysis generally. Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631,
98 S. Ct. 2646 (1978). It is true that in at least some cases the
landowner with 95% loss will get nothing, while the landowner with total loss
will recover in full. But that occasional result is no more strange than the
gross disparity between the landowner whose premises are taken for a highway
(who recovers in full) and the landowner whose property is reduced to 5% of its
former value by the highway (who recovers nothing). Takings law is full of
these "all-or-nothing" situations. JUSTICE STEVENS similarly
misinterprets our focus on "developmental" uses of property (the uses
proscribed by the Beachfront Management Act) as betraying an "assumption
that the only uses of property cognizable under the Constitution are developmental
uses." Post, 505 U.S. at 1065, n.3. We make no such assumption.
Though our prior takings cases evince an abiding concern for the productive use
of, and economic investment in, land, there are plainly a number of noneconomic
interests in land whose impairment will invite exceedingly close scrutiny under
the Takings Clause. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 436, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982) (interest in excluding
strangers from one's land).
[*1020]
[**2896] B
[***LEdHR6A] [6A]The trial court found Lucas's two
beachfront lots to have been rendered valueless by respondent's enforcement of
the coastal-zone construction
[***816] ban. n9 Under Lucas's theory
of the case, which rested upon our "no economically viable use"
statements, that finding entitled him to compensation. Lucas believed it
unnecessary to take issue with either the purposes behind the Beachfront
Management Act, or the means chosen by the South Carolina Legislature to
effectuate those purposes. The South Carolina Supreme Court, however, thought
otherwise. In its view, the Beachfront Management Act was no ordinary
enactment, but involved an exercise of South Carolina's "police powers"
to mitigate the harm to the public interest that petitioner's use of his [*1021]
land might occasion. 304 S.C. at
384, 404 S.E.2d at 899. By neglecting to dispute the findings enumerated in the
Act n10 or otherwise to challenge the legislature's purposes, [*1022]
petitioner "conceded that the beach/dune area of [***817]
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 resource; and that discouraging new construction
in close proximity to the beach/dune area is necessary to prevent a great
public harm." Id., at 382-383, 404 S.E.2d at 898. In the court's
view, these concessions brought petitioner's challenge within a long line of
this Court's cases sustaining against
[**2897] Due Process and Takings
Clause challenges the State's use of its "police powers" to enjoin a
property owner from activities akin to public nuisances. See Mugler v.
Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887) (law prohibiting
manufacture of alcoholic beverages); Hadacheck v. Sebastian, 239 U.S.
394, 60 L. Ed. 348, 36 S. Ct. 143 (1915) (law barring operation of brick mill
in residential area); Miller v. Schoene, 276 U.S. 272, 72 L. Ed. 568, 48
S. Ct. 246 (1928) (order to destroy diseased cedar trees to prevent infection
of nearby orchards); Goldblatt v. Hempstead, 369 U.S. 590, 8 L. Ed. 2d
130, 82 S. Ct. 987 (1962) (law effectively preventing continued operation of
quarry in residential area).
[***LEdHR6B] [6B]
n9 This finding was the premise of the petition for
certiorari, and since it was not challenged in the brief in opposition we
decline to entertain the argument in respondent's brief on the merits, see
Brief for Respondent 45-50, that the finding was erroneous. Instead, we decide
the question presented under the same factual assumptions as did the Supreme
Court of South Carolina. SeeOklahoma City v. Tuttle, 471 U.S. 808, 816,
85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985).
n10 The legislature's express findings include the
following:
"The General Assembly finds that:
"(1) The beach/dune system along the coast of
South Carolina is extremely important to the people of this State and serves
the following functions:
"(a) protects life and property by serving as a
storm barrier which dissipates wave energy and contributes to shoreline
stability in an economical and effective manner;
"(b) provides the basis for a tourism industry
that generates approximately two-thirds of South Carolina's annual tourism
industry revenue which constitutes a significant portion of the state's
economy. The tourists who come to the South Carolina coast to enjoy the ocean
and dry sand beach contribute significantly to state and local tax revenues;
"(c) provides habitat for numerous species of
plants and animals, several of which are threatened or endangered. Waters
adjacent to the beach/dune system also provide habitat for many other marine
species;
"(d) provides a natural health environment for
the citizens of South Carolina to spend leisure time which serves their
physical and mental well-being.
"(2) Beach/dune system vegetation is unique and
extremely important to the vitality and preservation of the system.
"(3) Many miles of South Carolina's beaches have
been identified as critically eroding.
"(4) . . . Development unwisely has been sited
too close to the [beach/dune] system. This type of development has jeopardized
the stability of the beach/dune system, accelerated erosion, and endangered
adjacent property. It is in both the public and private interests to protect
the system from this unwise development.
"(5) The use of armoring in the form of hard
erosion control devices such as seawalls, bulkheads, and rip-rap to protect
erosion-threatened structures adjacent to the beach has not proven effective.
These armoring devices have given a false sense of security to beachfront
property owners. In reality, these hard structures, in many instances, have
increased the vulnerability of beachfront property to damage from wind and
waves while contributing to the deterioration and loss of the dry sand beach
which is so important to the tourism industry.
"(6) Erosion is a natural process which becomes a
significant 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.
. . . .
"(8) It is in the state's best interest to
protect and to promote increased public access to South Carolina's beaches for
out-of-state tourists and South Carolina residents alike." S. C. Code Ann.
§ 48-39-250 (Supp. 1991).
[***LEdHR1B] [1B]It is correct that many of our prior
opinions have suggested that "harmful or noxious uses" of property
may be proscribed by government regulation without the requirement of
compensation. For a number of reasons, however, we think the South Carolina
Supreme Court was too quick to conclude that that principle decides the present
case. The "harmful or noxious uses" principle was the Court's early
attempt to describe in theoretical terms why government [*1023]
may, consistent with the Takings Clause, affect property values by
regulation without incurring an obligation to compensate -- a reality we
nowadays acknowledge explicitly with respect to the full scope of the State's
police power. See, e.g., Penn Central Transportation Co., 438 U.S. at
125 (where State "reasonably concludes that 'the health, safety, morals,
or general welfare' would be promoted by prohibiting particular contemplated
uses of land," compensation need not accompany prohibition); see also Nollan
v. California Coastal Comm'n, 483 U.S. at 834-835 ("Our cases have not
elaborated on the standards for determining what constitutes a 'legitimate
state interest[,]' [but] they have made clear . . . that a broad range of
governmental purposes and regulations satisfy these requirements"). We
made this very point in Penn Central Transportation Co., where, in the
course of sustaining New York City's landmarks preservation program against a takings
challenge, we rejected the petitioner's suggestion that Mugler and the
cases following it were premised on, and thus limited by, some objective
conception of "noxiousness":
"The uses in issue in Hadacheck, Miller,
and Goldblatt were perfectly lawful in themselves. They involved no
'blameworthiness, . . . moral wrongdoing or conscious act of dangerous
risk-taking which induced society to shift the cost to a particular
individual.' Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964). These
cases are better understood as resting not on any supposed 'noxious' quality of
the prohibited uses but rather on the ground that the restrictions were
reasonably related [***818] to the implementation of a policy -- not
unlike historic preservation -- expected to produce a widespread public benefit
and applicable to all similarly situated property." 438 U.S. at 133-134,
n.30.
"Harmful or noxious use" analysis was, in other words, simply the progenitor of our
more contemporary statements that [*1024] "land-use regulation does not effect a
taking if it 'substantially advances legitimate state interests' . . . ." Nollan,
supra, at 834 (quoting Agins v. Tiburon, 447 U.S. at 260); see also Penn
Central Transportation Co., supra, at 127; Euclid v. Ambler Realty Co.,
272 U.S. 365, 387-388, 71 L. Ed. 303, 47 S. Ct. 114 (1926).
[***LEdHR1C] [1C]The transition from our early focus on
control of "noxious" uses to our contemporary understanding of the
broad realm within which government may regulate without compensation was an
easy one, since the distinction between "harm-preventing" and
"benefit-conferring" regulation is often in the eye of the beholder.
It is quite possible, for [**2898] example, to describe in either fashion
the ecological, economic, and esthetic concerns that inspired the South
Carolina Legislature in the present case. One could say that imposing a
servitude on Lucas's land is necessary in order to prevent his use of it from
"harming" South Carolina's ecological resources; or, instead, in
order to achieve the "benefits" of an ecological preserve. n11
Compare, e.g., Claridge v. New Hampshire [*1025]
Wetlands Board, 125 N.H. 745, 752, 485 A.2d 287, 292 (1984)
(owner may, without compensation, be barred from filling wetlands because landfilling
would deprive adjacent coastal habitats and marine fisheries of ecological
support), with, e.g., Bartlett v. Zoning Comm'n of Old Lyme, 161 Conn.
24, 30, 282 A.2d 907, 910 (1971) (owner barred from filling tidal marshland
must be compensated, despite municipality's "laudable" goal of
"preserving marshlands from encroachment or destruction"). Whether
one or the other of the competing characterizations will [***819]
come to one's lips in a particular case depends primarily upon one's
evaluation of the worth of competing uses of real estate. See Restatement
(Second) of Torts § 822, Comment g,
p. 112 (1979) ("Practically all human activities unless carried on in a
wilderness interfere to some extent with others or involve some risk of
interference"). A given restraint will be seen as mitigating
"harm" to the adjacent parcels or securing a "benefit" for
them, depending upon the observer's evaluation of the relative importance of
the use that the restraint favors. See Sax, Takings and the Police Power, 74 Yale L. J. 36, 49 (1964) ("The problem
[in this area] is not one of noxiousness or harm-creating activity at all;
rather it is a problem of inconsistency between perfectly innocent and
independently desirable uses"). Whether Lucas's construction of single-family
residences on his parcels should be described as bringing "harm" to
South Carolina's adjacent ecological resources thus depends principally upon
whether the describer believes that the State's use interest in nurturing those
resources is so important that any competing adjacent use must yield.
n12
n11 In the present case, in fact, some of the
"[South Carolina] legislature's 'findings'" to which the South
Carolina Supreme Court purported to defer in characterizing the purpose of the
Act as "harm-preventing," 304 S.C. 376, 385, 404 S.E.2d 895, 900
(1991), seem to us phrased in "benefit-conferring" language instead.
For example, they describe the importance of a construction ban in enhancing
"South Carolina's annual tourism industry revenue," S. C. Code Ann.
§ 48-39-250(1)(b) (Supp. 1991), in
"providing habitat for numerous species of plants and animals, several of
which are threatened or endangered," §
48-39-250(1)(c), and in "providing a natural healthy environment
for the citizens of South Carolina to spend leisure time which serves their
physical and mental well-being," §
48-39-250(1)(d). It would be pointless to make the outcome of this case
hang upon this terminology, since the same interests could readily be described
in "harm-preventing" fashion.
JUSTICE BLACKMUN, however, apparently insists that we must
make the outcome hinge (exclusively) upon the South Carolina Legislature's
other, "harm-preventing" characterizations, focusing on the
declaration that "prohibitions on building in front of the setback line
are necessary to protect people and property from storms, high tides, and beach
erosion." Post, 505 U.S. at 1040. He says "nothing in the
record undermines [this] assessment," ibid., apparently seeing no
significance in the fact that the statute permits owners of existing
structures to remain (and even to rebuild if their structures are not
"destroyed beyond repair," S. C. Code Ann. § 48-39-290(B) (Supp. 1988)), and in the fact
that the 1990 amendment authorizes the Council to issue permits for new construction
in violation of the uniform prohibition, see S. C. Code Ann. § 48-39-290(D)(1) (Supp. 1991).
[***LEdHR1D] [1D]
n12 In JUSTICE BLACKMUN's view, even with respect to
regulations that deprive an owner of all developmental or economically
beneficial land uses, the test for required compensation is whether the
legislature has recited a harm-preventing justification for its action. See post,
505 U.S. at 1039, 1040-1041, 1047-1051. Since such a justification can be
formulated in practically every case, this amounts to a test of whether the
legislature has a stupid staff. We think the Takings Clause requires courts to
do more than insist upon artful harm-preventing characterizations.
[*1026]
When it is understood that "prevention of harmful use" was
merely our early formulation of the police power justification necessary to
sustain (without compensation) any
[**2899] regulatory diminution in
value; and that the distinction between regulation that "prevents harmful
use" and that which "confers benefits" is difficult, if not
impossible, to discern on an objective, value-free basis; it becomes
self-evident that noxious-use logic cannot serve as a touchstone to distinguish
regulatory "takings" -- which
require compensation -- from regulatory deprivations that do not require
compensation. A fortiori the legislature's recitation of a noxious-use
justification cannot be the basis for departing from our categorical rule that
total regulatory takings must be compensated. If it were, departure would
virtually always be allowed. The South Carolina Supreme Court's approach would
essentially nullify Mahon's affirmation of limits to the noncompensable
exercise of the police power. Our cases provide no support for this: None of
them that employed the logic of "harmful use" prevention to sustain a
regulation involved an allegation that the regulation wholly eliminated the
value of the claimant's land. See Keystone Bituminous Coal Assn., 480
U.S. at 513-514 (REHNQUIST, C. J., dissenting). n13
n13 E. g., Mugler v. Kansas, 123 U.S. 623, 31
L. Ed. 205, 8 S. Ct. 273 (1887) (prohibition upon use of a building as a
brewery; other uses permitted); Plymouth Coal Co. v. Pennsylvania, 232
U.S. 531, 58 L. Ed. 713, 34 S. Ct. 359 (1914) (requirement that
"pillar" of coal be left in ground to safeguard mine workers; mineral
rights could otherwise be exploited); Reinman v. Little Rock, 237 U.S.
171, 59 L. Ed. 900, 35 S. Ct. 511 (1915) (declaration that livery stable
constituted a public nuisance; other uses of the property permitted); Hadacheck
v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143 (1915)
(prohibition of brick manufacturing in residential area; other uses permitted);
Goldblatt v. Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130, 82 S. Ct. 987
(1962) (prohibition on excavation; other uses permitted).
[*1027]
[***820]
[***LEdHR1E] [1E] [***LEdHR7A] [7A]Where the State seeks to sustain
regulation that deprives land of all economically beneficial use, we think it
may resist compensation only if the logically antecedent inquiry into the
nature of the owner's estate shows that the proscribed use interests were not
part of his title to begin with. n14 This accords, we think, with our
"takings" jurisprudence, which has traditionally been guided by the
understandings of our citizens regarding the content of, and the State's power
over, the "bundle of rights" that they acquire when they obtain title
to property. It seems to us that the property owner necessarily expects the
uses of his property to be restricted, from time to time, by various measures
newly enacted by the State in legitimate exercise of its police powers;
"as long recognized, some values are enjoyed under an implied limitation
and must yield to the police power." Pennsylvania Coal Co. v. Mahon,
260 U.S. at 413. And in the case of personal property, by reason of the State's
traditionally high degree of control over commercial dealings, he ought to be
aware of the possibility that new regulation might even render [*1028]
his property economically worthless (at least if the property's only
economically productive use is sale or manufacture for sale). See Andrus v.
Allard, 444 U.S. 51, 66-67,
[**2900] 62 L. Ed. 2d 210, 100 S.
Ct. 318 (1979) (prohibition on sale of eagle feathers). In the case of land,
however, we think the notion pressed by the Council that title is somehow held
subject to the "implied limitation" that the State may subsequently
eliminate all economically valuable use is inconsistent with the historical
compact recorded in the Takings Clause that has become part of our
constitutional culture. n15
n14 Drawing on our First Amendment jurisprudence, see,
e.g., Employment Div., Dept. of Human Resources of Ore. v. Smith, 494
U.S. 872, 878-879, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990), JUSTICE STEVENS would
"look to the generality of a regulation of property" to
determine whether compensation is owing.
Post, 505 U.S. at 1072. The Beachfront Management Act is general,
in his view, because it "regulates the use of the coastline of the entire
State." Post, 505 U.S. at 1074. There may be some validity to the
principle JUSTICE STEVENS proposes, but it does not properly apply to the
present case. The equivalent of a law of general application that inhibits the
practice of religion without being aimed at religion, see Oregon v. Smith,
supra, is a law that destroys the value of land without being aimed at
land. Perhaps such a law -- the generally applicable criminal prohibition on
the manufacturing of alcoholic beverages challenged in Mugler comes to
mind -- cannot constitute a compensable taking. See 123 U.S. at 655-656. But a
regulation specifically directed to land use no more acquires immunity
by plundering landowners generally than does a law specifically directed at
religious practice acquire immunity by prohibiting all religions. JUSTICE
STEVENS's approach renders the Takings Clause little more than a particularized
restatement of the Equal Protection Clause.
[***LEdHR7B] [7B]
n15 After accusing us of "launching a missile to
kill a mouse," post, 505 U.S. at 1036, JUSTICE BLACKMUN expends a
good deal of throw-weight of his own upon a noncombatant, arguing that our
description of the "understanding" of land ownership that informs the
Takings Clause is not supported by early American experience. That is largely
true, but entirely irrelevant. The practices of the States prior to
incorporation of the Takings and Just Compensation Clauses, see Chicago, B.
& Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581
(1897) -- which, as JUSTICE BLACKMUN acknowledges, occasionally included outright
physical appropriation of land without compensation, see post, 505
U.S. at 1056 -- were out of accord with any plausible interpretation of
those provisions. JUSTICE BLACKMUN is correct that early constitutional theorists
did not believe the Takings Clause embraced regulations of property at all, see
post, 505 U.S. at 1057-1058, and n.23, but even he does not suggest
(explicitly, at least) that we renounce the Court's contrary conclusion in Mahon.
Since the text of the Clause can be read to encompass regulatory as well as
physical deprivations (in contrast to the text originally proposed by Madison,
see Speech Proposing Bill of Rights (June 8, 1789), in 12 J. Madison, The
Papers of James Madison 201 (C. Hobson, R. Rutland, W. Rachal, & J. Sisson
ed. 1979) ("No person shall be . . . obliged to relinquish his property,
where it may be necessary for public use, without a just compensation"),
we decline to do so as well.
[***821]
[***LEdHR1F] [1F] [***LEdHR8] [8]Where "permanent physical
occupation" of land is concerned, we have refused to allow the government
to decree it anew (without compensation), no matter how weighty the asserted
"public interests" involved, Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. at 426 -- though we assuredly would permit the
government to assert a permanent easement that was a pre-existing limitation
upon the landowner's [*1029] title. Compare Scranton v. Wheeler,
179 U.S. 141, 163, 45 L. Ed. 126, 21 S. Ct. 48 (1900) (interests of
"riparian owner in the submerged lands . . . bordering on a public
navigable water" held subject to Government's navigational servitude),
with Kaiser Aetna v. United States, 444 U.S. at 178-180 (imposition of
navigational servitude on marina created and rendered navigable at private
expense held to constitute a taking). We believe similar treatment must be
accorded confiscatory regulations, i.e., regulations that prohibit all
economically beneficial use of land: Any limitation so severe cannot be newly
legislated or decreed (without compensation), but must inhere in the title
itself, in the restrictions that background principles of the State's law of
property and nuisance already place upon land ownership. A law or decree with
such an effect must, in other words, do no more than duplicate the result that
could have been achieved in the courts -- by adjacent landowners (or other
uniquely affected persons) under the State's law of private nuisance, or by the
State under its complementary power to abate nuisances that affect the public
generally, or otherwise. n16
n16 The principal "otherwise" that we have
in mind is litigation absolving the State (or private parties) of liability for
the destruction of "real and personal property, in cases of actual necessity,
to prevent the spreading of a fire" or to forestall other grave threats to
the lives and property of others. Bowditch
v. Boston, 101 U.S. 16, 18-19, 25 L. Ed. 980 (1880); see United States
v. Pacific R. Co., 120 U.S. 227, 238-239, 30 L. Ed. 634, 7 S. Ct. 490
(1887).
[***LEdHR1G] [1G] [***LEdHR9] [9] [***LEdHR10A] [10A]On this analysis, the owner of a
lakebed, for example, would not be entitled to compensation when he is denied
the requisite permit to engage in a landfilling operation that would have the
effect of flooding others' land. Nor the corporate owner of a nuclear
generating plant, when it is directed to remove all improvements from its land
upon discovery that the plant sits astride an earthquake fault. Such regulatory
action may well have the effect of eliminating the land's only economically
productive use, but it does [**2901] not proscribe a productive use that was
previously permissible [*1030] under relevant property and nuisance
principles. The use of these properties for what are now expressly prohibited
purposes was always unlawful, and (subject to other constitutional
limitations) it [***822] was open to the State at any point to make
the implication of those background principles of nuisance and property law
explicit. See Michelman, Property, Utility, and Fairness, Comments on the
Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev.
1165, 1239-1241 (1967). In light of our traditional resort to "existing
rules or understandings that stem from an independent source such as state
law" to define the range of interests that qualify for protection as
"property" under the Fifth and Fourteenth Amendments, Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct.
2701 (1972); see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1011-1012, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984); Hughes v. Washington,
389 U.S. 290, 295, 19 L. Ed. 2d 530, 88 S. Ct. 438 (1967) (Stewart, J.,
concurring), this recognition that the Takings Clause does not require
compensation when an owner is barred from putting land to a use that is
proscribed by those "existing rules or understandings" is surely
unexceptional. When, however, a regulation that declares "off-limits"
all economically productive or beneficial uses of land goes beyond what the
relevant background principles would dictate, compensation must be paid to
sustain it. n17
[***LEdHR10B] [10B]
n17 Of course, the State may elect to rescind
itsregulation and thereby avoid having to pay compensation for a permanent
deprivation. See First English Evangelical Lutheran Church, 482 U.S. at
321. But "where the [regulation has] already worked a taking of all use of
property, no subsequent action by the government can relieve it of the duty to
provide compensation for the period during which the taking was
effective." Ibid.
[***LEdHR11] [11]The "total taking" inquiry we
require today will ordinarily entail (as the application of state nuisance law
ordinarily entails) analysis of, among other things, the degree of harm to
public lands and resources, or adjacent private property, [*1031]
posed by the claimant's proposed activities, see, e.g.,
Restatement (Second) of Torts § § 826,
827, the social value of the claimant's activities and their suitability to the
locality in question, see, e.g., id., § § 828(a) and (b), 831, and the relative ease
with which the alleged harm can be avoided through measures taken by the
claimant and the government (or adjacent private landowners) alike, see, e.g.,
id., § § 827(e), 828(c), 830. The
fact that a particular use has long been engaged in by similarly situated
owners ordinarily imports a lack of any common-law prohibition (though changed
circumstances or new knowledge may make what was previously permissible no
longer so, see id., § 827,
Comment g. So also does the fact that other landowners, similarly
situated, are permitted to continue the use denied to the claimant.
[***LEdHR1H] [1H] [***LEdHR12] [12]It seems unlikely that common-law
principles would have prevented the erection of any habitable or productive
improvements on petitioner's land; they rarely support prohibition of the
"essential use" of land, Curtin v. Benson, 222 U.S. 78, 86, 56
L. Ed. 102, 32 S. Ct. 31 (1911). The question, however, is one of state law to
be dealt with on remand. We emphasize that to win its case South Carolina must
do more than proffer the legislature's declaration that the uses Lucas desires
are inconsistent with the public interest,
[***823] or the conclusory
assertion that they violate a common-law maxim such as sic utere tuo ut
alienum non laedas. As we have said, a "State, by ipse dixit,
may not transform private property into public property without compensation .
. . ." Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
164, 66 L. Ed. 2d 358, 101 S. Ct. 446 (1980). Instead, as it would be required
to do if it sought to restrain Lucas in a common-law action for public
nuisance, South Carolina must identify background principles of nuisance and
property law that prohibit the uses
[**2902] he now intends in the
circumstances in which the property is presently found. Only on this showing
can [*1032] the State fairly claim that, in proscribing
all such beneficial uses, the Beachfront Management Act is taking nothing. n18
[***LEdHR1I] [1I]
n18 JUSTICE BLACKMUN decries our reliance on
backgroundnuisance principles at least in part because he believes those principles
to be as manipulable as we find the "harm prevention"/"benefit
conferral" dichotomy, see post, 505 U.S. at 1054-1055. There is no
doubt some leeway in a court's interpretation of what existing state law
permits -- but not remotely as much, we think, as in a legislative crafting of
the reasons for its confiscatory regulation. We stress that an affirmative
decree eliminating all economically beneficial uses may be defended only if an objectively
reasonable application of relevant precedents would exclude those
beneficial uses in the circumstances in which the land is presently found.
* * *
The judgment is reversed, and the
case is remanded for proceedings not inconsistent with this opinion.
So ordered.
CONCURBY: KENNEDY
CONCUR:
JUSTICE KENNEDY, concurring in the
judgment.
The case comes to the Court in an
unusual posture, as all my colleagues observe. Ante, at 1010-1011; post,
505 U.S. at 1041 (BLACKMUN, J., dissenting); post, 505 U.S. at 1061-1062
(STEVENS, J., dissenting); post, 505 U.S. at 1076-1077 (statement of
SOUTER, J.). After the suit was initiated but before it reached us, South
Carolina amended its Beachfront Management Act to authorize the issuance of
special permits at variance with the Act's general limitations. See S. C. Code
Ann. § 48-39-290(D)(1) (Supp. 1991).
Petitioner has not applied for a special permit but may still do so. The
availability of this alternative, if it can be invoked, may dispose of
petitioner's claim of a permanent taking. As I read the Court's opinion, it
does not decide the permanent taking claim, but neither does it foreclose the
Supreme Court of South Carolina from considering the claim or requiring
petitioner to pursue an administrative alternative not previously available.
The potential for future relief
does not control our disposition, because whatever may occur in the future
cannot undo [*1033] what has occurred in the past. The Beachfront
Management Act was enacted in 1988. S. C. Code Ann. § 48-39-250 et seq. (Supp. 1990). It may have deprived petitioner of the
use of his land in an interim period. §
48-39-290(A). If this deprivation amounts to a taking, its limited
duration will not bar constitutional relief. It is well established that
temporary takings are as protected by the Constitution as are [***824]
permanent ones. First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.
304, 318, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987).
The issues presented in the case
are ready for our decision. The Supreme Court of South Carolina decided the
case on constitutional grounds, and its rulings are now before us. There exists
no jurisdictional bar to our disposition, and prudential considerations ought
not to militate against it. The State cannot complain of the manner in which
the issues arose. Any uncertainty in this regard is attributable to the State,
as a consequence of its amendment to the Beachfront Management Act. If the
Takings Clause is to protect against temporary deprivations, as well as
permanent ones, its enforcement must not be frustrated by a shifting background
of state law.
Although we establish a framework
for remand, moreover, we do not decide the ultimate question whether a
temporary taking has occurred in this case. The facts necessary to the
determination have not been developed in the record. Among the matters to be considered
on remand must be whether petitioner had the intent and capacity to develop the
property and failed to do so in the interim period because the State prevented
him. Any failure by petitioner to comply
[**2903] with relevant
administrative requirements will be part of that analysis.
The South Carolina Court of Common
Pleas found that petitioner's real property has been rendered valueless by the
State's regulation. App. to Pet. for Cert. 37. The finding appears to presume
that the property has no significant market
[*1034] value or resale
potential. This is a curious finding, and I share the reservations of some of
my colleagues about a finding that a beachfront lot loses all value because of
a development restriction. Post,
505 U.S. at 1043-1045 (BLACKMUN, J., dissenting); post, 505 U.S. at
1065, n.3 (STEVENS, J., dissenting); post, 505 U.S. at 1076 (statement
of SOUTER, J.). While the Supreme Court of South Carolina on remand need not
consider the case subject to this constraint,
we must accept the finding as entered below. See Oklahoma City v.
Tuttle, 471 U.S. 808, 816, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985).
Accepting the finding as entered, it follows that petitioner is entitled to
invoke the line of cases discussing regulations that deprive real property of
all economic value. See Agins v. City of Tiburon, 447 U.S. 255, 260, 65
L. Ed. 2d 106, 100 S. Ct. 2138 (1980).
The finding of no value must be
considered under the Takings Clause by reference to the owner's reasonable,
investment-backed expectations. Kaiser
Aetna v. United States, 444 U.S. 164, 175, 62 L. Ed. 2d 332, 100 S. Ct. 383
(1979); Penn Central Transportation Co. v. New York City, 438 U.S. 104,
124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978); see also W. B. Worthen Co. v.
Kavanaugh, 295 U.S. 56, 79 L. Ed. 1298, 55 S. Ct. 555 (1935). The Takings
Clause, while conferring substantial protection on property owners, does not
eliminate the police power of the State to enact limitations on the use of
their property. Mugler v. Kansas,
123 U.S. 623, 669, 31 L. Ed. 205, 8 S. Ct. 273 (1887). The rights conferred by
the Takings Clause and the police power of the State may coexist without [***825]
conflict. Property is bought and sold, investments are made, subject to
the State's power to regulate. Where a taking is alleged from regulations which
deprive the property of all value, the test must be whether the deprivation is
contrary to reasonable, investment-backed expectations.
There is an inherent tendency
towards circularity in this synthesis, of course; for if the owner's reasonable
expectations are shaped by what courts allow as a proper exercise of
governmental authority, property tends to become what courts say it is. Some
circularity must be tolerated in these matters, however, as it is in other
spheres. E.g., Katz v. [*1035]
United States, 389 U.S. 347 (1967) (Fourth Amendment protections
defined by reasonable expectations of privacy). The definition, moreover, is
not circular in its entirety. The expectations protected by the Constitution
are based on objective rules and customs that can be understood as reasonable
by all parties involved.
In my view, reasonable
expectations must be understood in light of the whole of our legal tradition.
The common law of nuisance is too narrow a confine for the exercise of
regulatory power in a complex and interdependent society. Goldblatt v. Hempstead, 369 U.S. 590,
593, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962). The State should not be prevented
from enacting new regulatory initiatives in response to changing conditions,
and courts must consider all reasonable expectations whatever their source. The
Takings Clause does not require a static body of state property law; it
protects private expectations to ensure private investment. I agree with the
Court that nuisance prevention accords with the most common expectations of
property owners who face regulation, but I do not believe this can be the sole
source of state authority to impose severe restrictions. Coastal property may
present such unique concerns for a fragile land system that the State can go
further in regulating its development and use than the common law of nuisance
might otherwise permit.
The Supreme Court of South
Carolina erred, in my view, by reciting the general purposes for which the
state regulations [**2904] were enacted without a determination that
they were in accord with the owner's reasonable expectations and therefore
sufficient to support a severe restriction on specific parcels of
property. See 304 S.C. 376, 383, 404
S.E.2d 895, 899 (1991). The promotion of tourism, for instance, ought not to
suffice to deprive specific property of all value without a corresponding duty
to compensate. Furthermore, the means, as well as the ends, of regulation must
accord with the owner's reasonable expectations. Here, the State did not act
until after the property had been zoned for individual [*1036]
lot development and most other parcels had been improved, throwing the whole
burden of the regulation on the remaining lots. This too must be measured in
the balance. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 67
L. Ed. 322, 43 S. Ct. 158 (1922).
With these observations, I concur
in the judgment of the Court.
DISSENTBY: BLACKMUN;
STEVENS
DISSENT:
JUSTICE BLACKMUN, dissenting.
Today the Court launches a missile
to kill a mouse.
[***826]
The State of South Carolina prohibited petitioner Lucas from building a
permanent structure on his property from 1988 to 1990. Relying on an unreviewed
(and implausible) state trial court finding that this restriction left Lucas'
property valueless, this Court granted review to determine whether compensation
must be paid in cases where the State prohibits all economic use of real
estate. According to the Court, such an occasion never has arisen in any of our
prior cases, and the Court imagines that it will arise "relatively
rarely" or only in "extraordinary circumstances." Almost
certainly it did not happen in this case.
Nonetheless, the Court presses on
to decide the issue, and as it does, it ignores its jurisdictional limits,
remakes its traditional rules of review, and creates simultaneously a new
categorical rule and an exception (neither of which is rooted in our prior case
law, common law, or common sense). I protest not only the Court's decision, but
each step taken to reach it. More fundamentally, I question the Court's wisdom
in issuing sweeping new rules to decide such a narrow case. Surely, as JUSTICE
KENNEDY demonstrates, the Court could have reached the result it wanted without
inflicting this damage upon our Takings Clause jurisprudence.
My fear is that the Court's new
policies will spread beyond the narrow confines of the present case. For that
reason, I, like the Court, will give far greater attention to this case than
its narrow scope suggests -- not because I can intercept [*1037]
the Court's missile, or save the targeted mouse, but because I hope
perhaps to limit the collateral damage.
I
A
In 1972 Congress passed the
Coastal Zone Management Act. 16 U.S.C.
§ 1451 et seq. The Act was designed
to provide States with money and incentives to carry out Congress' goal of
protecting the public from shoreline erosion and coastal hazards. In the 1980
amendments to the Act, Congress directed States to enhance their coastal
programs by "preventing or significantly reducing threats to life and the
destruction of property by eliminating development and redevelopment in
high-hazard areas." n1 16 U.S.C. §
1456b(a)(2) (1988 ed., Supp. II).
n1 The country has come to recognize that uncontrolled
beachfront development can cause serious damage to life and property. See Brief
for Sierra Club et al. as Amici Curiae 2-5. Hurricane Hugo's September
1989 attack upon South Carolina's coastline, for example, caused 29 deaths and
approximately $ 6 billion in property damage, much of it the result of
uncontrolled beachfront development. See Zalkin, 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). The beachfront
buildings are not only themselves destroyed in such a storm, "but they are
often driven, like battering rams, into adjacent inland homes." Ibid.
Moreover, the development often destroys the natural sand dune barriers that
provide storm breaks. Ibid.
[**2905]
South Carolina began implementing the congressional directive by
enacting the South Carolina Coastal Zone Management Act of 1977. Under the 1977
Act, any construction activity in what was designated the "critical
area" required a permit from the South Carolina Coastal Council (Council),
and the construction of any habitable structure was [***827]
prohibited. The 1977 critical area was relatively narrow.
This effort did not stop the loss
of shoreline. In October 1986, the Council appointed a "Blue Ribbon
Committee on Beachfront Management" to investigate beach erosion and [*1038]
propose possible solutions. In March 1987, the Committee found that
South Carolina's beaches were "critically eroding," and proposed
land-use restrictions. Report of the South Carolina Blue Ribbon Committee on
Beachfront Management i, 6-10 (Mar. 1987). In response, South Carolina enacted
the Beachfront Management Act on July 1, 1988. S. C. Code Ann. § 48-39-250 et seq. (Supp. 1990). The
1988 Act did not change the uses permitted within the designated critical
areas. Rather, it enlarged those areas to encompass the distance from the mean
high watermark to a setback line established on the basis of "the best
scientific and historical data" available. n2 S. C. Code Ann. § 48-39-280 (Supp. 1991).
n2 The setback line was determined by calculating the
distance landward from the crest of an ideal oceanfront sand dune which is 40
times the annual erosion rate. S. C. Code Ann. § 48-39-280 (Supp. 1991).
B
Petitioner Lucas is a contractor,
manager, and part owner of the Wild Dune development on the Isle of Palms. He
has lived there since 1978. In December 1986, he purchased two of the last four
pieces of vacant property in the development. n3 The area is notoriously
unstable. In roughly half of the last 40 years, all or part of petitioner's
property was part of the beach or flooded twice daily by the ebb and flow of
the tide. Tr. 84. Between 1957 and 1963, petitioner's property was under water.
Id., at 79, 81-82. Between 1963 and 1973 the shoreline was 100 to 150
feet onto petitioner's property. Ibid. In 1973 the first line of stable
vegetation was about halfway through the property. Id., at 80. Between 1981 and 1983, the
Isle of Palms issued 12 emergency orders for
[*1039] sandbagging to protect
property in the Wild Dune development. Id., at 99. Determining that
local habitable structures were in imminent danger of collapse, the Council
issued permits for two rock revetments to protect condominium developments near
petitioner's property from erosion; one of the revetments extends more than
halfway onto one of his lots. Id., at 102.
n3 The properties were sold frequently at rapidly
escalating prices before Lucas purchased them. Lot 22 was first sold in 1979 for
$ 96,660, sold in 1984 for $ 187,500, then in 1985 for $ 260,000, and, finally,
to Lucas in 1986 for $ 475,000. He estimated its worth in 1991 at $ 650,000.
Lot 24 had a similar past. The record does not indicate who purchased the
properties prior to Lucas, or why none of the purchasers held on to the lots
and built on them. Tr. 44-46.
C
The South Carolina Supreme Court
found that the Beachfront Management Act did not take petitioner's property
without compensation. The decision rested on two premises that until today were
unassailable -- that the State has the power to prevent any use of property it
finds to be harmful to its citizens, and that a state statute is entitled to a
presumption of constitutionality.
The Beachfront Management Act
includes a finding by the South Carolina General Assembly that the beach/dune
system serves the purpose [***828] of "protecting life and property by
serving as a storm barrier which dissipates wave energy and contributes to
shoreline [**2906] stability in an economical and effective
manner." S. C. Code Ann. §
48-39-250(1)(a) (Supp. 1990). The General Assembly also found that
"development unwisely has been sited too close to the [beach/dune] system.
This type of development has jeopardized the stability of the beach/dune
system, accelerated erosion, and endangered adjacent property." § 48-39-250(4); see also § 48-39-250(6) (discussing the need to
"afford the beach/dune system space to accrete and erode").
If the state legislature is
correct that the prohibition on building in front of the setback line prevents
serious harm, then, under this Court's prior cases, the Act is constitutional.
"Long ago it was recognized that all property in this country is held
under the implied obligation that the owner's use of it shall not be injurious
to the community, and the Takings Clause did not transform that principle to
one that requires compensation whenever the State asserts its power to
enforce [*1040] it." Keystone Bituminous Coal Assn.
v. DeBenedictis, 480 U.S. 470, 491-492, 94 L. Ed. 2d 472, 107 S. Ct. 1232
(1987) (internal quotation marks omitted); see also id., at 488-489, and
n.18. The Court consistently has upheld regulations imposed to arrest a
significant threat to the common welfare, whatever their economic effect on the
owner. See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 592-593, 8 L.
Ed. 2d 130, 82 S. Ct. 987 (1962); Euclid v. Ambler Realty Co., 272 U.S.
365, 71 L. Ed. 303, 47 S. Ct. 114 (1926); Gorieb v. Fox, 274 U.S. 603,
608, 71 L. Ed. 1228, 47 S. Ct. 675 (1927); Mugler v. Kansas, 123 U.S.
623, 31 L. Ed. 205, 8 S. Ct. 273 (1887).
Petitioner never challenged the
legislature's findings that a building ban was necessary to protect property
and life. Nor did he contend that the threatened harm was not sufficiently
serious to make building a house in a particular location a "harmful"
use, that the legislature had not made sufficient findings, or that the
legislature was motivated by anything other than a desire to minimize damage to
coastal areas. Indeed, petitioner objected at trial that evidence as to the
purposes of the setback requirement was irrelevant. Tr. 68. The South Carolina
Supreme Court accordingly understood petitioner not to contest the State's
position that "discouraging new construction in close proximity to the
beach/dune area is necessary to prevent a great public harm," 304 S.C.
376, 383, 404 S.E.2d 895, 898 (1991), and "to prevent serious injury to
the community." Id., at 387, 404 S.E.2d at 901. The court
considered itself "bound by these uncontested legislative findings . . .
[in the absence of] any attack whatsoever on the statutory scheme." Id.,
at 383, 404 S.E.2d at 898.
Nothing in the record undermines
the General Assembly's assessment that prohibitions on building in front of the
setback line are necessary to protect people and property from storms, high
tides, and beach erosion. Because that legislative determination cannot be
disregarded in the absence of such evidence, see, e.g., Euclid, 272 U.S.
at 388; O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S.
251, 257-258, 75 L. Ed. 324, 51 S. Ct. 130
[***829] (1931) (Brandeis, J.),
and because its determination [*1041] of harm to life and property from building is
sufficient to prohibit that use under this Court's cases, the South Carolina
Supreme Court correctly found no taking.
II
My disagreement with the Court
begins with its decision to review this case. This Court has held consistently
that a land-use challenge is not ripe for review until there is a final
decision about what uses of the property will be permitted. The ripeness
requirement is not simply a gesture of good will to land-use planners. In the
absence of "a final and authoritative determination of the type and
intensity of development legally permitted on the subject property," MacDonald,
Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 91 L. Ed. 2d 285,
106 S. Ct. 2561 (1986), and the utilization of
[**2907] state procedures for
just compensation, there is no final judgment, and in the absence of a final
judgment there is no jurisdiction, see San Diego Gas & Electric Co.
v. San Diego, 450 U.S. 621, 633, 67 L. Ed. 2d 551, 101 S. Ct. 1287 (1981); Agins
v. City of Tiburon, 447 U.S. 255, 260, 65 L. Ed. 2d 106, 100 S. Ct. 2138
(1980).
This rule is "compelled by
the very nature of the inquiry required by the Just Compensation Clause,"
because the factors applied in deciding a takings claim "simply cannot be
evaluated until the administrative agency has arrived at a final, definitive
position regarding how it will apply the regulations at issue to the particular
land in question." Williamson County Regional Planning Comm'n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 190, 191, 87 L. Ed. 2d 126,
105 S. Ct. 3108 (1985). See also MacDonald, Sommer & Frates, 477
U.S. at 348 ("A court cannot determine whether a regulation has gone 'too
far' unless it knows how far the regulation goes") (citation omitted).
The Court admits that the 1990
amendments to the Beachfront Management Act allowing special permits preclude
Lucas from asserting that his property has been permanently taken. See ante,
505 U.S. at 1011-1012. The Court agrees that such a claim would not be ripe
because there has been no final decision by respondent on what uses will be
permitted. [*1042] The Court, however, will not be denied: It
determines that petitioner's "temporary takings" claim for the period
from July 1, 1988, to June 25, 1990, is ripe. But this claim also is not
justiciable. n4
n4 The Court's reliance, ante, 505 U.S. at
1013, on Esposito v. South Carolina Coastal Council, 939 F.2d 165, 168
(CA4 1991), cert. denied, post, 505 U.S., p. 1219, in support of its
decision to consider Lucas' temporary takings claim ripe is misplaced. In Esposito
the plaintiffs brought a facial challenge to the mere enactment of the Act.
Here, of course, Lucas has brought an as-applied challenge. See Brief for
Petitioner 16. Facial challenges are ripe when the Act is passed; applied
challenges require a final decision on the Act's application to the property in
question.
From the very beginning of this
litigation, respondent has argued that the courts
"lack jurisdiction in this matter because the
Plaintiff has sought no authorization from Council for use of his property, has
not challenged the location of the baseline or setback [***830]
line as alleged in the Complaint and because no final agency decision
has been rendered concerning use of his property or location of said baseline
or setback line." Tr. 10 (answer, as amended).
Although the Council's plea has been ignored by every court, it is
undoubtedly correct.
Under the Beachfront Management
Act, petitioner was entitled to challenge the setback line or the baseline or
erosion rate applied to his property in formal administrative, followed by
judicial, proceedings. S. C. Code Ann. §
48-39-280(E) (Supp. 1991). Because Lucas failed to pursue this
administrative remedy, the Council never finally decided whether Lucas' particular
piece of property was correctly categorized as a critical area in which
building would not be permitted. This is all the more crucial because Lucas
argued strenuously in the trial court that his land was perfectly safe to build
on, and that his company had studies to prove it. Tr. 20, 25, 36. If he was
correct, the Council's [*1043] final decision would have been to alter the
setback line, eliminating the construction ban on Lucas' property.
That petitioner's property fell
within the critical area as initially interpreted by the Council does not
excuse petitioner's failure to challenge the Act's application to his property
in the administrative process. The claim is not ripe until petitioner seeks a
variance from that status. "We have made it quite clear that the mere
assertion of regulatory jurisdiction by a governmental body does not constitute
a regulatory taking." United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121, 126, 88 L. Ed. 2d 419, 106 S. Ct. 455 (1985). See also Williamson
County, [**2908] 473 U.S. at 188 (claim not ripe because
respondent did not seek variances that would have allowed it to develop the
property, notwithstanding the commission's finding that the plan did not comply
with the zoning ordinance and subdivision regulations). n5
n5 Even more baffling, given its decision, just a few
days ago, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d
351, 112 S. Ct. 2130 (1992), the Court decides petitioner has demonstrated
injury in fact. In his complaint, petitioner made no allegations that he had
any definite plans for using his property. App. to Pet. for Cert. 153-156. At
trial, Lucas testified that he had house plans drawn up, but that he was
"in no hurry" to build "because the lot was appreciating in
value." Tr. 28-29. The trial court made no findings of fact that Lucas had
any plans to use the property from 1988 to 1990. "'Some day' intentions --
without any description of concrete plans, or indeed even any specification of when
the some day will be -- do not support a finding of the 'actual or imminent'
injury that our cases require." 504 U.S. at 564. The Court circumvents Defenders
of Wildlife by deciding to resolve this case as if it arrived on the
pleadings alone. But it did not. Lucas had a full trial on his claim for
"'damages for the temporary taking of his property' from the date of the
1988 Act's passage to 'such time as this matter is finally resolved,'" ante,
505 U.S. at 1013, n.3, quoting the complaint, and failed to demonstrate any
immediate concrete plans to build or sell.
Even if I agreed with the Court
that there were no jurisdictional barriers to deciding this case, I still would
not try to decide it. The Court creates its new takings jurisprudence based on
the trial court's finding that the property
[*1044] had lost all economic [***831]
value. n6 This finding is almost certainly erroneous. Petitioner still
can enjoy other attributes of ownership, such as the right to exclude others,
"one of the most essential sticks in the bundle of rights that are
commonly characterized as property." Kaiser Aetna v. United States,
444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979). Petitioner can
picnic, swim, camp in a tent, or live on the property in a movable trailer.
State courts frequently have recognized that land has economic value where the
only residual economic uses are recreation or camping. See, e.g., Turnpike
Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972); Turner v.
County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972), cert.
denied, 409 U.S. 1108 (1973); Hall v. Board of Environmental Protection,
528 A.2d 453 (Me. 1987). 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.
n6 Respondent contested the findings of fact of the
trial court in the South Carolina Supreme Court, but that court did not resolve
the issue. This Court's decision to assume for its purposes that petitioner had
been denied all economic use of his land does not, of course, dispose of the
issue on remand.
Yet the trial court, apparently
believing that "less value" and "valueless" could be used
interchangeably, found the property "valueless." The court accepted
no evidence from the State on the property's value without a home, and
petitioner's appraiser testified that he never had considered what the value
would be absent a residence. Tr. 54-55. The appraiser's value was based on the
fact that the "highest and best use of these lots . . . [is] luxury single
family detached dwellings." Id., at 48. The trial court appeared to
believe that the property could be considered "valueless" if it was
not available for its most profitable use. Absent that erroneous assumption,
see Goldblatt, 369 U.S. at 592, I find no evidence in the record
supporting the trial court's conclusion that the damage to the lots by virtue
of the restrictions [*1045] was "total." Record 128 (findings
of fact). I agree with the Court, ante, 505 U.S. at 1020, n.9, that it
has the power to decide a case that turns on an erroneous finding, but I
question the wisdom of deciding an issue based on a factual premise that does
not exist in this case, and in the judgment of the Court will exist in the
future only in "extraordinary circumstances," ante, 505 U.S.
at 1017.
[**2909]
Clearly, the Court was eager to decide this case. n7 But eagerness,
in [***832] the absence of proper jurisdiction, must --
and in this case should have been -- met with restraint.
n7 The Court overlooks the lack of a ripe and
justiciable claim apparently out of concern that in the absence of its
intervention Lucas will be unable to obtain further adjudication of his
temporary takings claim. The Court chastises respondent for arguing that Lucas'
temporary takings claim is premature because it failed "so much as [to]
comment" upon the effect of the South Carolina Supreme Court's decision on
petitioner's ability to obtain relief for the 2-year period, and it frets that
Lucas would "be unable (absent our intervention now) to obtain further
state-court adjudication with respect to the 1988-1990 period." Ante,
505 U.S. at 1012. Whatever the explanation for the Court's intense interest in
Lucas' plight when ordinarily we are more cautious in granting discretionary
review, the concern would have been more prudently expressed by vacating the
judgment below and remanding for further consideration in light of the 1990
amendments. At that point, petitioner could have brought a temporary takings
claim in the state courts.
III
The Court's willingness to
dispense with precedent in its haste to reach a result is not limited to its
initial jurisdictional decision. The Court also alters the long-settled rules
of review.
The South Carolina Supreme Court's
decision to defer to legislative judgments in the absence of a challenge from
petitioner comports with one of this Court's oldest maxims: "The existence
of facts supporting the legislative judgment is to be presumed." United
States v. Carolene Products Co., 304 U.S. 144, 152, 82 L. Ed. 1234, 58 S.
Ct. 778 (1938). Indeed, we have said the legislature's judgment is
"well-nigh conclusive." Berman v. Parker, [*1046]
348 U.S. 26, 32, 75 S. Ct. 98, 99 L. Ed. 27 (1954). See also Sweet v.
Rechel, 159 U.S. 380, 392, 40 L. Ed. 188, 16 S. Ct. 43 (1895); Euclid,
272 U.S. at 388 ("If the validity of the legislative classification for
zoning purposes be fairly debatable, the legislative judgment must be allowed
to control").
Accordingly, this Court always has
required plaintiffs challenging the constitutionality of an ordinance to
provide "some factual foundation of record" that contravenes the
legislative findings. O'Gorman &
Young, 282 U.S. at 258. In the
absence of such proof, "the presumption of constitutionality must
prevail." Id., at 257. We only recently have reaffirmed that
claimants have the burden of showing a state law constitutes a taking. See Keystone
Bituminous Coal, 480 U.S. at 485. See also Goldblatt, 369 U.S. at
594 (citing "the usual presumption of constitutionality" that applies
to statutes attacked as takings).
Rather than invoking these
traditional rules, the Court decides the State has the burden to convince the
courts that its legislative judgments are correct. Despite Lucas' complete
failure to contest the legislature's findings of serious harm to life and
property if a permanent structure is built, the Court decides that the
legislative findings are not sufficient to justify the use prohibition.
Instead, the Court "emphasizes" the State must do more than merely
proffer its legislative judgments to avoid invalidating its law. Ante, 505 U.S. at 1031. In this case,
apparently, the State now has the burden of showing the regulation is not a
taking. The Court offers no justification for its sudden hostility toward state
legislators, and I doubt that it could.
IV
The Court does not reject the
South Carolina Supreme Court's decision simply on the basis of its disbelief
and distrust of the legislature's findings. It also takes the opportunity to
create a new scheme for regulations that eliminate all economic value. From now
on, there is a categorical rule finding these regulations to be a taking unless
the use they [*1047] prohibit is a background common-law nuisance
or property principle. See ante, 505 U.S. at 1028-1031.
[***833]
[**2910] A
I first question the Court's
rationale in creating a category that obviates a "case-specific inquiry
into the public interest advanced," ante, 505 U.S. at 1015, if all
economic value has been lost. If one fact about the Court's takings
jurisprudence can be stated without contradiction, it is that "the
particular circumstances of each case" determine whether a specific
restriction will be rendered invalid by the government's failure to pay
compensation. United States v.
Central Eureka Mining Co., 357 U.S. 155, 168, 2 L. Ed. 2d 1228, 78 S. Ct.
1097 (1958). This is so because although we have articulated certain factors to
be considered, including the economic impact on the property owner, the
ultimate conclusion "necessarily requires a weighing of private and public
interests." Agins, 447 U.S. at 261. When the government regulation
prevents the owner from any economically valuable use of his property, the
private interest is unquestionably substantial, but we have never before held
that no public interest can outweigh it. Instead the Court's prior decisions
"uniformly reject the proposition that diminution in property value,
standing alone, can establish a 'taking.'" Penn Central Transp. Co. v.
New York City, 438 U.S. 104, 131, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978).
This Court repeatedly has
recognized the ability of government, in certain circumstances, to regulate
property without compensation no matter how adverse the financial effect on the
owner may be. More than a century ago, the Court explicitly upheld the right of
States to prohibit uses of property injurious to public health, safety, or
welfare without paying compensation: "A prohibition simply upon the use of
property for purposes that are declared, by valid legislation, to be injurious
to the health, morals, or safety of the community, cannot, in any just sense,
be deemed a taking or an appropriation of property." Mugler v. Kansas, [*1048]
123 U.S. at 668-669. On this basis, the Court upheld an ordinance
effectively prohibiting operation of a previously lawful brewery, although the
"establishments will become of no value as property." Id., at
664; see also id., at 668.
Mugler was only the beginning in a long line of cases. n8 In
Powell v. Pennsylvania, 127 U.S. 678, 32 L. Ed. 253, 8 S. Ct. 992
(1888), the Court upheld legislation prohibiting the manufacture of
oleomargarine, despite the owner's allegation that "if prevented from
continuing it, the value of his property employed therein would be entirely
lost and he be deprived of the means of livelihood." Id., at 682.
In Hadacheck v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143
(1915), the Court upheld an ordinance prohibiting a brickyard, although the
owner had made excavations on the land that prevented it [***834]
from being utilized for any purpose but a brickyard. Id., at 405. In Miller v. Schoene,
276 U.S. 272, 72 L. Ed. 568, 48 S. Ct. 246 (1928), the Court held that the
Fifth Amendment did not require Virginia to pay compensation to the owner of
cedar trees ordered destroyed to prevent a disease from spreading to nearby
apple orchards. The "preferment of [the public interest] over the property
interest of the individual, to the extent even of its destruction, is one of
the distinguishing characteristics of every exercise of the police power which
affects property." Id., at 280. Again, in Omnia Commercial Co.
v. United States, 261 U.S. 502, 67 L. Ed. 773, 43 S. Ct. 437 (1923), the
Court stated that "destruction of, or injury to, property is frequently
accomplished without [**2911] a 'taking' in the constitutional sense."
Id., at 508.
n8 Prior to Mugler, the Court had held that
owners whose real property is wholly destroyed to prevent the spread of a fire
are not entitled to compensation. Bowditch
v. Boston, 101 U.S. 16, 18-19, 25 L. Ed. 980 (1880). And the Court
recognized in the License Cases, 46 U.S. (5 How.) 504, 589, 12 L. Ed.
256 (1847) (opinion of McLean, J.), that "the acknowledged police power of
a State extends often to the destruction of property."
More recently, in Goldblatt,
the Court upheld a town regulation that barred continued operation of an
existing sand and gravel operation in order to protect public safety. [*1049]
369 U.S. at 596. "Although a comparison of values before and after
is relevant," the Court stated, "it is by no means conclusive."
n9 Id., at 594. In 1978, the Court declared that "in instances in
which a state tribunal reasonably concluded that 'the health, safety, morals,
or general welfare' would be promoted by prohibiting particular contemplated
uses of land, this Court has upheld land-use regulation that destroyed . . .
recognized real property interests." Penn Central Transp. Co., 438
U.S. at 125. In First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378
(1987), the owner alleged that a floodplain ordinance had deprived it of
"all use" of the property. Id.,
at 312. The Court remanded the case for consideration whether, even if the
ordinance denied the owner all use, it could be justified as a safety measure.
n10 Id., at 313. And in Keystone Bituminous Coal, the Court
summarized over 100 years of precedent:
"The Court has repeatedly upheld regulations that destroy or
adversely affect real property interests." n11 480 U.S. at 489, n.18.
n9 That same year, an appeal came to the Court asking
"whether zoning ordinances which altogether destroy the worth of valuable
land by prohibiting the only economic use of which it is capable effect a
taking of real property without compensation." Juris. Statement, O. T.
1962, No. 307, p. 5. The Court dismissed the appeal for lack of a substantial
federal question. Consolidated Rock
Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P.2d 342, 20 Cal. Rptr.
638, appeal dism'd, 371 U.S. 36 (1962).
n10 On remand, the California court found no taking in
part because the zoning regulation "involves this highest of public
interests -- the prevention of death and injury." First Lutheran Church
v. Los Angeles, 210 Cal. App. 3d 1353, 1370, 258 Cal. Rptr. 893, 904
(1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 950, 110 S. Ct. 866 (1990).
n11 The Court's suggestion that Agins v. City of
Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980), a unanimous
opinion, created a new per se rule, only now discovered, is
unpersuasive. In Agins, the Court stated that "no precise rule
determines when property has been taken" but instead that "the
question necessarily requires a weighing of public and private interest." Id.,
at 260-262. The other cases cited by the Court, ante, 505 U.S. at 1015,
repeat the Agins sentence, but in no way suggest that the public
interest is irrelevant if total value has been taken. The Court has indicated
that proof that a regulation does not deny an owner economic use of his
property is sufficient to defeat a facial takings challenge. See Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,
295-297, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). But the conclusion that a
regulation is not on its face a taking because it allows the landowner some
economic use of property is a far cry from the proposition that denial
of such use is sufficient to establish a takings claim regardless of any other
consideration. The Court never has accepted the latter proposition.
The Court relies today on dicta in Agins, Hodel,
Nollan v. California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S.
Ct. 3141 (1987), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U.S. 470, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987), for its new categorical
rule. Ante, 505 U.S. at
1015-1016. I prefer to rely on the directly contrary holdings in cases such as Mugler
v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887), and Hadacheck
v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143 (1915), not to
mention contrary statements in the very cases on which the Court relies. See Agins,
447 U.S. at 260-262; Keystone Bituminous Coal, 480 U.S. at 489, n.18,
491-492.
[*1050]
[***835] The Court recognizes
that "our prior opinions have suggested that 'harmful or noxious uses' of
property may be proscribed by government regulation without the requirement of
compensation," ante, 505 U.S. at 1022, but seeks to reconcile them
with its categorical rule by claiming that the Court never has upheld a
regulation when the owner alleged the loss of all economic value. Even if the
Court's factual premise were correct, its understanding of the Court's cases is
distorted. In none of the cases did the Court suggest that the right of a State
to prohibit certain activities without paying compensation [**2912]
turned on the availability of some residual valuable use. n12 Instead,
the cases depended on whether the
[*1051] government interest was
sufficient to prohibit the activity, given the significant private cost. n13
n12 Miller v. Schoene, 276 U.S. 272, 72 L. Ed.
568, 48 S. Ct. 246 (1928), is an example. In the course of demonstrating that
apple trees are more valuable than red cedar trees, the Court noted that red
cedar has "occasional use and value as lumber." Id., at 279.
But the Court did not discuss whether the timber owned by the petitioner in
that case was commercially salable, and nothing in the opinion suggests that
the State's right to require uncompensated felling of the trees depended on any
such salvage value. To the contrary, it is clear from its unanimous opinion
that the Schoene Court would have sustained a law requiring the burning
of cedar trees if that had been necessary to protect apple trees in which there
was a public interest: The Court spoke of preferment of the public interest
over the property interest of the individual, "to the extent even of its
destruction." Id., at 280.
n13 The Court seeks to disavow the holdings and
reasoning of Mugler and subsequent cases by explaining that they were
the Court's early efforts to define the scope of the police power. There is
language in the earliest takings cases suggesting that the police power was
considered to be the power simply to prevent harms. Subsequently, the Court
expanded its understanding of what were government's legitimate interests. But
it does not follow that the holding of those early cases -- that harmful and
noxious uses of property can be forbidden whatever the harm to the property
owner and without the payment of compensation -- was repudiated. To the
contrary, as the Court consciously expanded the scope of the police power
beyond preventing harm, it clarified that there was a core of public interests
that overrode any private interest. See Keystone Bituminous Coal, 480
U.S. at 491, n.20.
These cases rest on the principle
that the State has full power to prohibit an owner's use of property if it is
harmful to the public. "Since no individual has a right to use his
property so as to create a nuisance or otherwise harm others, the State has not
'taken' anything when it asserts its power to enjoin the nuisance-like [***836]
activity." Keystone Bituminous Coal, 480 U.S. at 491, n.20.
It would make no sense under this theory to suggest that an owner has a
constitutionally protected right to harm others, if only he makes the proper
showing of economic loss. n14 See Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 418, 67 L. Ed. 322, 43 S. Ct. 158 (1922) (Brandeis, J., dissenting)
("Restriction upon [harmful] use does not become inappropriate as a means,
merely because it deprives the owner of the only use to which the property can
then be profitably put").
n14 "Indeed, it would be extraordinary to
construe the Constitution to require a government to compensate private
landowners because it denied them 'the right' to use property which cannot be
used without risking injury and death." First Lutheran Church, 210
Cal. App. 3d at 1366, 258 Cal. Rptr. at 901-902.
[*1052]
B
Ultimately even the Court cannot
embrace the full implications of its per se rule: It eventually agrees
that there cannot be a categorical rule for a taking based on economic value
that wholly disregards the public need asserted. Instead, the Court decides
that it will permit a State to regulate all economic value only if the State
prohibits uses that would not be permitted under "background principles of
nuisance and property law." n15 Ante, 505 U.S. at 1031.
n15 Although it refers to state nuisance and property
law, the Court apparently does not mean just any state nuisance and property
law. Public nuisance was first a common-law creation, see Newark, The
Boundaries of Nuisance, 65 L. Q. Rev. 480, 482 (1949) (attributing development
of nuisance to 1535), but by the 1800's in both the United States and England,
legislatures had the power to define what is a public nuisance, and particular
uses often have been selectively targeted. See Prosser, Private Action for
Public Nuisance, 52 Va. L. Rev. 997, 999-1000 (1966); J. Stephen, A General
View of the Criminal Law of England 105-107 (2d ed. 1890). The Court's
references to "common-law" background principles, however, indicate
that legislative determinations do not constitute "state nuisance and
property law" for the Court.
Until today, the Court explicitly
had rejected the contention that the government's power to act without paying
compensation [**2913] turns on whether the prohibited activity is a
common-law nuisance. n16 The brewery closed in Mugler itself was not a
common-law nuisance, and the Court specifically stated that it was the role of
the legislature to determine
[*1053] what measures would be
appropriate for the protection of public health and safety. See 123 U.S. at
661. In upholding the state action in Miller, the Court found it
unnecessary to "weigh with nicety the question whether the infected cedars
constitute a nuisance according to common law; or whether they may be so
declared by statute." 276 U.S. at 280. See also Goldblatt, [***837]
369 U.S. at 593; Hadacheck, 239 U.S. at 411. Instead the Court
has relied in the past, as the South Carolina court has done here, on
legislative judgments of what constitutes a harm. n17
n16 Also, until today the fact that the regulation
prohibited uses that were lawful at the time the owner purchased did not
determine the constitutional question. The brewery, the brickyard, the cedar
trees, and the gravel pit were all perfectly legitimate uses prior to the
passage of the regulation. See Mugler v. Kansas, 123 U.S. at 654; Hadacheck
v. Sebastian, 239 U.S. 394, 60 L. Ed. 348, 36 S. Ct. 143 (1915); Miller,
276 U.S. at 272; Goldblatt v. Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130,
82 S. Ct. 987 (1962). This Court explicitly acknowledged in Hadacheck
that "[a] vested interest cannot be asserted against [the police power]
because of conditions once obtaining. To so hold would preclude development and
fix a city forever in its primitive conditions." 239 U.S. at 410 (citation
omitted).
n17 The Court argues that finding no taking when the
legislature prohibits a harmful use, such as the Court did in Mugler and
the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania
Coal. See ante, 505 U.S. at 1022-1023. Justice Holmes, the author of
Pennsylvania Coal, joined Miller v. Schoene, 276 U.S. 272, 72 L.
Ed. 568, 48 S. Ct. 246 (1928), six years later. In Miller, the Court
adopted the exact approach of the South Carolina court: It found the cedar
trees harmful, and their destruction not a taking, whether or not they were a
nuisance. Justice Holmes apparently believed that such an approach did not
repudiate his earlier opinion. Moreover, this Court already has been over this
ground five years ago, and at that point rejected the assertion that Pennsylvania
Coal was inconsistent with Mugler, Hadacheck, Miller, or the others
in the string of "noxious use" cases, recognizing instead that the
nature of the State's action is critical in takings analysis. Keystone Bituminous Coal, 480 U.S. at
490.
The Court rejects the notion that the State
always can prohibit uses it deems a harm to the public without granting
compensation because "the distinction between 'harm-preventing' and
'benefit-conferring' regulation is often in the eye of the beholder." Ante,
505 U.S. at 1024. Since the characterization will depend "primarily upon
one's evaluation of the worth of competing uses of real estate," ante,
505 U.S. at 1025, the Court decides a legislative judgment of this kind no
longer can provide the desired "objective, value-free basis" for
upholding a regulation, ante, 505 U.S. at 1026. The Court, however,
fails to explain how its proposed common-law alternative escapes the same trap.
[*1054]
The threshold inquiry for imposition of the Court's new rule,
"deprivation of all economically valuable use," itself cannot be
determined objectively. As the Court admits, whether the owner has been
deprived of all economic value of his property will depend on how
"property" is defined. The "composition of the denominator in
our 'deprivation' fraction," ante, 505 U.S. at 1017, n.7, is the
dispositive inquiry. Yet there is no "objective" way to define what
that denominator should be. "We have long understood that any land-use
regulation can be characterized as the 'total' deprivation of an aptly defined
entitlement. . . . Alternatively, the same regulation can always be
characterized as a mere 'partial' withdrawal from full, unencumbered ownership
of the landholding affected by the regulation . . . ." n18 Michelman,
Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988).
n18 See also Michelman, Property, Utility, and
Fairness, Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv. L. Rev. 1165, 1192-1193 (1967); Sax, Takings and the Police
Power, 74 Yale L. J. 36, 60 (1964).
The Court's decision in Keystone
Bituminous Coal illustrates this principle perfectly. [**2914]
In Keystone, the Court determined that the "support
estate" was "merely a part of the entire bundle of rights possessed
by the owner." 480 U.S. at 501. Thus, the Court concluded that the support
estate's destruction merely eliminated one segment of the total property. Ibid.
The dissent, however, characterized the support estate as a distinct property
interest that was [***838] wholly destroyed. Id., at 519. The
Court could agree on no "value-free basis" to resolve this dispute.
Even more perplexing, however, is
the Court's reliance on common-law principles of nuisance in its quest for a
valuefree takings jurisprudence. In determining what is a nuisance at common
law, state courts make exactly the decision that the Court finds so troubling
when made by the South Carolina General Assembly today: They determine whether
the use is harmful. Common-law public and private nuisance [*1055]
law is simply a determination whether a particular use causes harm. See
Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997 (1966) ("Nuisance
is a French word which means nothing more than harm"). There is nothing
magical in the reasoning of judges long dead. They determined a harm in the same
way as state judges and legislatures do today. If judges in the 18th and 19th
centuries can distinguish a harm from a benefit, why not judges in the 20th
century, and if judges can, why not legislators? There simply is no reason to
believe that new interpretations of the hoary common-law nuisance doctrine will
be particularly "objective" or "value free." n19 Once one
abandons the level of generality of sic utere tuo ut alienum non laedas,
ante, 505 U.S. at 1031, one searches in vain, I think, for anything
resembling a principle in the common law of nuisance.
n19 "There is perhaps no more impenetrable jungle
in the entire law than that which surrounds the word 'nuisance.' It has meant
all things to all people, and has been applied indiscriminately to everything
from an alarming advertisement to a cockroach baked in a pie." W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts 616
(5th ed. 1984) (footnotes omitted). It is an area of law that "straddles
the legal universe, virtually defies synthesis, and generates case law to suit
every taste." W. Rodgers, Environmental Law § 2.4, p. 48 (1986) (footnotes omitted). The
Court itself has noted that "nuisance concepts" are "often vague
and indeterminate." Milwaukee v. Illinois, 451 U.S. 304, 317, 68 L.
Ed. 2d 114, 101 S. Ct. 1784 (1981).
C
Finally, the Court justifies its
new rule that the legislature may not deprive a property owner of the only
economically valuable use of his land, even if the legislature finds it to be a
harmful use, because such action is not part of the "'long
recognized'" "understandings of our citizens." Ante, 505
U.S. at 1027. These "understandings" permit such regulation only if
the use is a nuisance under the common law. Any other course is
"inconsistent with the historical compact recorded in the Takings
Clause." Ante, 505 U.S. at 1028. It is not clear from the
Court's [*1056] opinion where our "historical
compact" or "citizens' understanding" comes from, but it does
not appear to be history.
The principle that the State
should compensate individuals for property taken for public use was not widely
established in America at the time of the Revolution.
"The colonists . . . inherited . . . a concept of
property which permitted extensive regulation of the use of that property for
the public benefit -- regulation that could even go so far as to deny all
productive use of the property to the owner if, as Coke himself stated, the
regulation 'extends to the public benefit . . . for this is for the [***839]
public, and every one hath benefit by it.'" F. Bosselman, D.
Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of
the King's Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606)
(hereinafter [**2915] Bosselman).
See also Treanor, The Origins and Original Significance of the Just
Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 697, n.9 (1985).
n20
n20 See generally Sax, 74 Yale L. J., at 56-59.
"The evidence certainly seems to indicate that the mere fact that
government activity destroyed existing economic advantages and power did not
disturb [the English theorists who formulated the compensation notion] at
all." Id., at 56. Professor Sax contends that even Blackstone,
"remembered champion of the language of private property," did not
believe that the Compensation Clause was meant to preserve economic value. Id.,
at 58-59.
Even into the 19th century, state
governments often felt free to take property for roads and other public
projects without paying compensation to the owners. n21 See M. Horwitz, The
Transformation of American Law, 1780-1860, pp. 63-64 (1977) (hereinafter
Horwitz); Treanor, 94 Yale L. J., at 695. As one court declared in 1802,
citizens "were bound [*1057] to contribute as much of [land], as by the
laws of the country, were deemed necessary for the public convenience." M'Clenachan
v. Curwin, 3 Yeates 362, 373 (Pa. 1802). There was an obvious movement
toward establishing the just compensation principle during the 19th century,
but "there continued to be a strong current in American legal thought that
regarded compensation simply as a 'bounty given . . . by the State' out of 'kindness'
and not out of justice." Horwitz 65, quoting Commonwealth v. Fisher,
1 Pen. & W. 462, 465 (Pa. 1830). See also State v. Dawson, 21 S.C.
L. 100, 3 Hill 100, 103 (S. C. 1836). n22
n21 In 1796, the attorney general of South Carolina
responded to property holders' demand for compensation when the State took
their land to build a road by arguing that "there is not one instance on
record, and certainly none within the memory of the oldest man now living, of
any demand being made for compensation for the soil or freehold of the
lands." Lindsay v. Commissioners, 2 S. C. L. 38, 49 (1796).
n22 Only the Constitutions of Vermont and
Massachusetts required that compensation be paid when private property was
taken for public use; and although eminent domain was mentioned in the
Pennsylvania Constitution, its sole requirement was that property not be taken
without the consent of the legislature. See Grant, The "Higher Law"
Background of the Law of Eminent Domain, in 2 Selected Essays on Constitutional
Law 912, 915-916 (1938). By 1868, five of the original States still had no just
compensation clauses in their Constitutions. Ibid.
Although, prior to the adoption of
the Bill of Rights, America was replete with land-use regulations describing
which activities were considered noxious and forbidden, see Bender, The Takings
Clause: Principles or Politics?, 34 Buffalo L. Rev. 735, 751 (1985); L.
Friedman, A History of American Law 66-68 (1973), the Fifth Amendment's Takings
Clause originally did not extend to regulations of property, whatever the
effect. n23 See ante, 505 U.S. at 1014. Most state courts [***840]
agreed with this narrow interpretation of a taking. "Until the end
of the nineteenth century . . . jurists held that [*1058]
the constitution protected possession only, and not value." Siegel,
Understanding the Nineteenth Century Contract Clause: The Role of the
Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60
S. Cal. L. Rev. 1, 76 (1986); Bosselman 106. Even indirect and consequential
injuries to property resulting from regulations were excluded from the
definition of a taking. See ibid.; Callender v. Marsh, 1 Pick. 418, 430
(Mass. 1823).
n23 James Madison, author of the Takings Clause,
apparently intended it to apply only to direct, physical takings of property by
the Federal Government. See Treanor, The Origins and Original Significance of
the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 711
(1985). Professor Sax argues that although "contemporaneous commentary upon
the meaning of the compensation clause is in very short supply," 74 Yale
L. J., at 58, the "few authorities that are available" indicate that
the Clause was "designed to prevent arbitrary government action," not
to protect economic value. Id., at 58-60.
Even when courts began to consider
that regulation in some situations could constitute a taking, they continued to
uphold bans on particular uses without paying compensation, notwithstanding the
economic impact, under the rationale that no one can obtain a vested [**2916]
right to injure or endanger the public. n24 In the Coates cases,
for example, the Supreme Court of New York found no taking in New York's ban on
the interment of the dead within the city, although "no other use can be
made of these lands." Coates v. City of New York, 7 Cow. 585, 592
(N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5
Cow. 538 (N. Y. 1826); Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass.
1851); St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99,
146, 137 S.W. 929, 942 (1911), appeal dism'd, 231 U.S. 761 (1913). More recent
cases reach the same result. See Consolidated Rock Products Co. v. Los
Angeles, 57 Cal. 2d 515, 370 P.2d 342, 20 Cal. Rptr. 638, appeal dism'd,
371 U.S. 36 (1962); Nassr v. [*1059] Commonwealth, 394 Mass. 767, 477
N.E.2d 987 (1985); Eno v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965); Turner
v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal.
Rptr. 93 (1972).
n24 For this reason, the retroactive application of
the regulation to formerly lawful uses was not a controlling distinction in the
past. "Nor can it make any difference that the right is purchased previous
to the passage of the by-law," for "every right, from an absolute
ownership in property, down to a mere easement, is purchased and holden subject
to the restriction, that it shall be so exercised as not to injure others.
Though, at the time, it be remote and inoffensive, the purchaser is bound to
know, at his peril, that it may become otherwise." Coates v. City of New
York, 7 Cow. 585, 605 (N. Y. 1827). See also Brick Presbyterian Church
v. City of New York, 5 Cow. 538, 542 (N. Y. 1826); Commonwealth v.
Tewksbury, 11 Metc. 55 (Mass. 1846); State v. Paul, 5 R.I. 185
(1858).
In addition, state courts
historically have been less likely to find that a government action constitutes
a taking when the affected land is undeveloped. According to the South Carolina
court, the power of the legislature to take unimproved land without providing
compensation was sanctioned by "ancient rights and principles." Lindsay
v. Commissioners, 2 S.C. L. 38, 57 (1796). "Except for Massachusetts,
no colony appears to have paid compensation when it built a state-owned road
across unimproved land. Legislatures provided compensation only for enclosed or
improved land." Treanor, 94 Yale L. J., at 695 (footnotes omitted). This
rule was followed by some States into the 1800's. See Horwitz 63-65.
With similar result, the common
agrarian conception of property limited owners to "natural" uses of
their land prior to and during much of the 18th century. See id., at 32.
Thus, for example, the owner could
[***841] build nothing on his
land that would alter the natural flow of water. See id., at 44; see
also, e. g., Merritt v. Parker, 1 Coxe 460, 463 (N. J. 1795). Some more
recent state courts still follow this reasoning. See, e. g., Just v.
Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761, 768 (1972).
Nor does history indicate any
common-law limit on the State's power to regulate harmful uses even to the point
of destroying all economic value. Nothing in the discussions in Congress
concerning the Takings Clause indicates that the Clause was limited by the
common-law nuisance doctrine. Common-law courts themselves rejected such an
understanding. They regularly recognized that it is "for the legislature
to interpose, and by positive enactment to prohibit a use of property which
would be injurious to the public."
[*1060] Tewksbury, 11
Metc., at 57. n25 Chief Justice Shaw explained in upholding a regulation prohibiting
construction of wharves, the existence of a taking did not depend on
"whether a certain erection in tide water is a nuisance at common law or
not." Alger, 7 Cush., at 104; see also State v. Paul, 5 R.I.
185, 193 (1858); Commonwealth v. Parks, 155 Mass. 531, 532, 30 N.E. 174
(1892) (Holmes, J.) ("The legislature may change the common law as to
nuisances, and may move the line either way, so as to make things
nuisances [**2917] which were not so, or to make things lawful
which were nuisances").
n25 More recent state-court decisions agree. See, e.
g., Lane v. Mt. Vernon, 38 N.Y.2d 344, 348-349, 342 N.E.2d 571, 573, 379
N.Y.S.2d 798 (1976); Commonwealth v. Baker, 160 Pa. Super. 640, 641-642,
53 A.2d 829, 830 (1947).
In short, I find no clear and accepted
"historical compact" or "understanding of our citizens"
justifying the Court's new takings doctrine. Instead, the Court seems to treat
history as a grab bag of principles, to be adopted where they support the
Court's theory, and ignored where they do not. If the Court decided that the
early common law provides the background principles for interpreting the
Takings Clause, then regulation, as opposed to physical confiscation, would not
be compensable. If the Court decided that the law of a later period provides
the background principles, then regulation might be compensable, but the Court
would have to confront the fact that legislatures regularly determined which
uses were prohibited, independent of the common law, and independent of whether
the uses were lawful when the owner purchased. What makes the Court's analysis
unworkable is its attempt to package the law of two incompatible eras and
peddle it as historical fact. n26
n26 The Court asserts that all early American
experience, prior to and after passage of the Bill of Rights, and any case law
prior to 1897 are "entirely irrelevant" in determining what is
"the historical compact recorded in the Takings Clause." Ante,
505 U.S. at 1028, and n.15. Nor apparently are we to find this compact in the
early federal takings cases, which clearly permitted prohibition of harmful
uses despite the alleged loss of all value, whether or not the prohibition was
a common-law nuisance, and whether or not the prohibition occurred subsequent
to the purchase. See supra, at 1047-1048, 1052-1053, and n.16. I cannot
imagine where the Court finds its "historical compact," if not in
history.
[*1061]
V
The Court makes sweeping and, in
my view, misguided and unsupported changes in our takings doctrine. While it
limits these changes to the most narrow subset of government [***842]
regulation -- those that eliminate all economic value from land -- these
changes go far beyond what is necessary to secure petitioner Lucas' private
benefit. One hopes they do not go beyond the narrow confines the Court assigns
them to today.
I dissent.
JUSTICE STEVENS, dissenting.
Today the Court restricts one
judge-made rule and expands another. In my opinion it errs on both counts.
Proper application of the doctrine of judicial restraint would avoid the
premature adjudication of an important constitutional question. Proper respect
for our precedents would avoid an illogical expansion of the concept of
"regulatory takings."
I
As the Court notes, ante,
505 U.S. at 1010-1011, South Carolina's Beachfront Management Act has been
amended to permit some construction of residences seaward of the line that
frustrated petitioner's proposed use of his property. Until he exhausts his
right to apply for a special permit under that amendment, petitioner is not
entitled to an adjudication by this Court of the merits of his permanent
takings claim. MacDonald, Sommer & Frates v. Yolo County, 477 U.S.
340, 351, 91 L. Ed. 2d 285, 106 S. Ct. 2561 (1986).
It is also not clear that he has a
viable "temporary takings" claim. If we assume that petitioner is now
able to build on the lot, the only injury that he may have suffered is [*1062]
the delay caused by the temporary existence of the absolute statutory
ban on construction. We cannot be sure, however, that that delay caused
petitioner any harm because the record does not tell us whether his building
plans were even temporarily frustrated by the enactment of the statute. n1
Thus, on the present record it is entirely possible that petitioner has
suffered no injury in fact [**2918] even if the state statute was unconstitutional
when he filed this lawsuit.
n1 In this regard, it is noteworthy that petitioner
acquired the lot about 18 months before the statute was passed; there is no
evidence that he ever sought a building permit from the local authorities.
It is true, as the Court notes,
that the argument against deciding the constitutional issue in this case rests
on prudential considerations rather than a want of jurisdiction. I think it
equally clear, however, that a Court less eager to decide the merits would
follow the wise counsel of Justice Brandeis in his deservedly famous concurring
opinion in Ashwander v. TVA, 297 U.S. 288, 341, 80 L. Ed. 688, 56 S. Ct.
466 (1936). As he explained, the Court has developed "for its own
governance in the cases confessedly within its jurisdiction, a series of rules
under which it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision." Id., at 346. The second of
those rules applies directly to this case.
"2. The Court will not 'anticipate a question of
constitutional law in advance of the necessity of deciding it.' Liverpool,
N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U.S. 33, 39, [***843]
28 L. Ed. 899, 5 S. Ct. 352; [citing five additional cases]. 'It is not
the habit of the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.' Burton v. United States
, 196 U.S. 283, 295, 49 L. Ed. 482, 25 S. Ct. 243." 297 U.S. at 346-347.
Cavalierly dismissing the doctrine
of judicial restraint, the Court today tersely announces that "we do not
think it prudent to apply that prudential requirement here." Ante,
at [*1063] 1013. I respectfully disagree and would save
consideration of the merits for another day. Since, however, the Court has
reached the merits, I shall do so as well.
II
In its analysis of the merits, the
Court starts from the premise that this Court has adopted a "categorical
rule that total regulatory takings must be compensated," ante, 505
In my opinion, the Court is doubly
in error. The categorical rule the Court establishes is an unsound and unwise
addition to the law and the Court's formulation of the exception to that rule
is too rigid and too narrow.
The Categorical Rule
As the Court recognizes, ante,
505
Nor does the Court's new
categorical rule find support in decisions following
In addition to lacking support in
past decisions, the Court's new rule is wholly arbitrary. A landowner whose
property is diminished in value 95% recovers nothing, while an owner whose
property is diminished 100% recovers the land's full value. The case at hand
illustrates this arbitrariness well. The Beachfront Management Act not only
prohibited the building of new dwellings in certain areas, it also prohibited
the rebuilding of houses that were "destroyed beyond repair by natural
causes or by fire." 1988 S. C. Acts 634, §
3; see also Esposito v. South Carolina Coastal Council, 939 F.2d
165, 167 (CA4 1991). n2 Thus, if the homes adjacent to Lucas' [*1065]
lot were destroyed by a hurricane one day after the Act took effect, the
owners would not be able to rebuild, nor would they be assured recovery. Under
the Court's categorical approach, Lucas (who has lost the opportunity to build)
recovers, while his neighbors (who have lost both the opportunity to
build and their homes) do not recover. The arbitrariness of such a rule
is palpable.
n2 This aspect of the Act was amended in 1990. See S.
C. Code Ann. § 48-39-290(B) (Supp.
1990).
Moreover, because of the elastic
nature of property rights, the Court's new rule will also prove unsound in
practice. In response to the rule, courts may define "property"
broadly and only rarely find regulations to effect total takings. This is the
approach the Court itself adopts in its revisionist reading of venerable
precedents. We are told that -- notwithstanding the Court's findings to the
contrary in each case -- the brewery in Mugler, the brickyard in Hadacheck,
and the gravel pit in Goldblatt all could be put to "other
uses" and that, therefore, those cases did not involve total regulatory
takings. n3 Ante, 505
n3 Of course, the same could easily be said in this
case: Lucas may put his land to "other uses" -- fishing or camping,
for example -- or may sell his land to his neighbors as a buffer. In either
event, his land is far from "valueless."
This highlights a fundamental weakness in the Court's
analysis: its failure to explain why only the impairment of "economically
beneficial or productive use," ante, 505
[***845]
On the other hand, developers and investors may market specialized
estates to take advantage of the Court's new rule. The smaller the estate, the
more likely that a regulatory change will effect a total taking. Thus, an
investor may, for example, purchase the right to build a multifamily home on a
specific lot, with the result that a zoning regulation that [*1066]
allows only single-family
[**2920] homes would render the
investor's property interest "valueless." n4 In short, the
categorical rule will likely have one of two effects: Either courts will alter
the definition of the "denominator" in the takings
"fraction," rendering the Court's categorical rule meaningless, or
investors will manipulate the relevant property interests, giving the Court's
rule sweeping effect. To my mind, neither of these results is desirable or
appropriate, and both are distortions of our takings jurisprudence.
n4 This unfortunate possibility is created by the
Court's subtle revision of the "total regulatory takings" dicta. In
past decisions, we have stated that a regulation effects a taking if it
"denies an owner economically viable use of his land," Agins v.
City of
Finally, the Court's justification
for its new categorical rule is remarkably thin. The Court mentions in passing
three arguments in support of its rule; none is convincing. First, the Court
suggests that "total deprivation of feasible use is, from the landowner's
point of view, the equivalent of a physical appropriation." Ante,
505
Second, the Court emphasizes that
because total takings are "relatively rare" its new rule will not
adversely affect the government's ability to "go on." Ante,
505
Finally, the Court suggests that
"regulations that leave the owner . . . without economically beneficial .
. . use . . . carry with them a heightened risk that private property is being
pressed into some form of public service." Ibid. As discussed more
fully below, see Part III, infra, I agree that the risks of such
singling out are of central concern in takings law. However, such risks do not
justify a per se rule for total regulatory takings. There is no necessary
correlation between "singling out" and total takings: A regulation
may single out a property owner
[***846] without depriving him of
all of his property, see, e. g., Nollan v. California Coastal Comm'n,
483 U.S. 825, 837, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987); J. E. D.
Associates, Inc. v. Atkinson, 121 N.H. 581, 432 A.2d 12 (1981); and it may
deprive him of all of his property without singling him out, see, e. g.,
Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887); Hadacheck v. Sebastian, 239 U.S. 394,
60 L. Ed. 348, 36 S. Ct. 143 (1915). What matters in such cases is not the
degree of diminution of value, but rather the specificity of the expropriating
act. For this reason, the Court's third justification for its new rule also
fails.
In short, the Court's new rule is
unsupported by prior decisions, arbitrary and unsound in practice, and
theoretically unjustified. In my opinion, a categorical rule as important as
the one established by the Court today should be supported by more history or
more reason than has yet been provided.
The Nuisance Exception
Like many bright-line rules, the
categorical rule established in this case is only "categorical" for a
page or two in the U. S. Reports. No sooner does the Court state that
"total regulatory takings must be
[**2921] compensated," ante,
505
[*1068]
The exception provides that a regulation that renders property valueless
is not a taking if it prohibits uses of property that were not "previously
permissible under relevant property and nuisance principles." Ante,
505 U.S. at 1029-1030. The Court thus rejects the basic holding in Mugler v.
Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887). There we held
that a statewide statute that prohibited the owner of a brewery from making
alcoholic beverages did not effect a taking, even though the use of the
property had been perfectly lawful and caused no public harm before the statute
was enacted. We squarely rejected the rule the Court adopts today:
"It is true, that, when the defendants . . .
erected their breweries, the laws of the State did not forbid the manufacture
of intoxicating liquors. But the State did not thereby give any assurance, or
come under an obligation, that its legislation upon that subject would remain
unchanged. The supervision of the public health and the public morals is a
governmental power, 'continuing in its nature,' and 'to be dealt with as the
special exigencies of the moment may require;' . . . 'for this purpose, the
largest legislative discretion is allowed, and the discretion cannot be parted
with any more than the power itself.'" Id., at 669.
Under our reasoning in Mugler,
a State's decision to prohibit or to regulate certain uses of property is not a
compensable taking just because the particular uses were previously lawful.
Under the Court's opinion today, however, if a State should decide to prohibit
the manufacture of asbestos, cigarettes, or concealable firearms, for example,
it must be prepared to pay for the adverse economic consequences of its
decision. One must wonder if government will be able to "go on"
effectively if it must risk compensation "for every such change in the
general law." Mahon, 260 U.S. at 413.
[***847]
The Court's holding today effectively freezes the State's common law,
denying the legislature much of its traditional
[*1069] power to revise the law
governing the rights and uses of property. Until today, I had thought that we
had long abandoned this approach to constitutional law. More than a century ago
we recognized that "the great office of statutes is to remedy defects in
the common law as they are developed, and to adapt it to the changes of time
and circumstances." Munn v. Illinois, 94 U.S. 113, 134, 24 L. Ed.
77 (1877). As Justice Marshall observed about a position similar to that
adopted by the Court today:
"If accepted, that claim would represent a return
to the era of Lochner v. New York , 198 U.S. 45, 49 L. Ed. 937, 25 S.
Ct. 539 (1905), when common-law rights were also found immune from revision by
State or Federal Government. Such an approach would freeze the common law as it
has been constructed by the courts, perhaps at its 19th-century state of
development. It would allow no room for change in response to changes in
circumstance. The Due Process Clause does not require such a result." PruneYard
Shopping Center v. Robins, 447 U.S. 74, 93, 64 L. Ed. 2d 741, 100 S. Ct.
2035 (1980) (concurring opinion).
Arresting the development of the
common law is not only a departure from our prior decisions; it is also
profoundly unwise. The human condition is one of constant learning and
evolution -- both moral and practical. Legislatures implement that new
learning; in doing so they must often revise the definition of property and the
rights of property owners. Thus, when the Nation came to understand that
slavery was morally wrong and mandated the emancipation of all slaves, it, in
effect, redefined "property." On a lesser scale, our ongoing
self-education produces similar changes in the rights of property owners: New
appreciation of the significance of endangered species, see, e. g., Andrus v. Allard, 444 U.S.
51, 62 L. Ed. 2d 210, 100 S. Ct. 318 (1979); the importance of wetlands, see, e.
g., 16 U. S. C. § 3801 et seq.;
and [**2922] the vulnerability of coastal [*1070]
lands, see, e. g., 16 U. S. C. §
1451 et seq., shapes our evolving understandings of property
rights.
Of course, some legislative
redefinitions of property will effect a taking and must be compensated -- but
it certainly cannot be the case that every movement away from common law does
so. There is no reason, and less sense, in such an absolute rule. We live in a
world in which changes in the economy and the environment occur with increasing
frequency and importance. If it was wise a century ago to allow government
"'the largest legislative discretion'" to deal with "'the
special exigencies of the moment,'" Mugler, 123 U.S. at 669, it is
imperative to do so today. The rule that should govern a decision in a case of
this kind should focus on the future, not the past. n5
n5 Even measured in terms of efficiency, the Court's
rule is unsound. The Court today effectively establishes a form of insurance
against certain changes in land-use regulations. Like other forms of insurance,
the Court's rule creates a "moral hazard" and inefficiencies: In the
face of uncertainty about changes in the law, developers will overinvest, safe
in the knowledge that if the law changes adversely, they will be entitled to
compensation. See generally Farber, Economic Analysis and Just Compensation, 12
Int'l Rev. of Law & Econ. 125 (1992).
[***848]
The Court's categorical approach rule will, I fear, greatly hamper the
efforts of local officials and planners who must deal with increasingly complex
problems in land-use and environmental regulation. As this case -- in which the
claims of an individual property owner exceed $ 1 million -- well
demonstrates, these officials face both substantial uncertainty because of the
ad hoc nature of takings law and unacceptable penalties if they guess
incorrectly about that law. n6
n6 As the Court correctly notes, in regulatory
takings, unlike physical takings, courts have a choice of remedies. See ante,
505 U.S. at 1030, n.17. They may "invalidate the excessive
regulation" or they may "allow the regulation to stand and order the
government to afford compensation for the permanent taking." First
English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
482 U.S. 304, 335, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987) (STEVENS, J.,
dissenting); see also id., at 319-321. In either event, however, the
costs to the government are likely to be substantial and are therefore likely
to impede the development of sound land-use policy.
[*1071]
Viewed more broadly, the Court's new rule and exception conflict with
the very character of our takings jurisprudence. We have frequently and
consistently recognized that the definition of a taking cannot be reduced to a
"set formula" and that determining whether a regulation is a taking
is "essentially [an] ad hoc, factual inquiry." Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631,
98 S. Ct. 2646 (1978) (quoting Goldblatt v. Hempstead, 369 U.S. at 594).
This is unavoidable, for the determination whether a law effects a taking is
ultimately a matter of "fairness and justice," Armstrong v. United
States, 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960), and
"necessarily requires a weighing of private and public interests," Agins,
447 U.S. at 261. The rigid rules fixed by the Court today clash with this
enterprise: "fairness and justice" are often disserved by categorical
rules.
III
It is well established that a
takings case "entails inquiry into [several factors:] the character of the
governmental action, its economic impact, and its interference with reasonable
investment-backed expectations." PruneYard , 447 U.S. at 83. The
Court's analysis today focuses on the last two of these three factors: The
categorical rule addresses a regulation's "economic impact," while
the nuisance exception recognizes that ownership brings with it only certain
"expectations." Neglected by the Court today is the first and, in
some ways, the most important factor in takings
[**2923] analysis: the character
of the regulatory action.
The Just Compensation Clause
"was designed to bar Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the
public as a whole." Armstrong, 364 U.S. at 49. Accordingly, one of
the central concerns of our takings jurisprudence is "preventing the
public from loading upon one individual more than his just share of the burdens
of government." Monongahela [***849]
Navigation Co. v. United [*1072]
States, 148 U.S. 312, 325 (1893). We have, therefore, in our
takings law frequently looked to the generality of a regulation of
property. n7
n7 This principle of generality is well rooted in our
broader understandings of the Constitution as designed in part to control the
"mischiefs of faction." See The Federalist No. 10, p. 43 (G. Wills
ed. 1982) (J. Madison).
An analogous concern arises in First Amendment law.
There we have recognized that an individual's rights are not violated when his
religious practices are prohibited under a neutral law of general
applicability. For example, in Employment Div., Dept. of Human Resources of
Ore. v. Smith, 494 U.S. 872, 879-880, 108 L. Ed. 2d 876, 110 S. Ct. 1595
(1990), we observed:
"[Our] decisions have consistently held that the
right of free exercise does not relieve an individual of the obligation to
comply with a 'valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).' United States v. Lee, 455 U.S. 252, 263, n.3, 71 L.
Ed. 2d 127, 102 S. Ct. 1051 (1982) (STEVENS, J., concurring in judgment). . . .
In Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438
(1944), we held that a mother could be prosecuted under the child labor laws
for using her children to dispense literature in the streets, her religious
motivation notwithstanding. We found no constitutional infirmity in 'excluding [these
children] from doing there what no other children may do.' Id., at 171.
In Braunfeld v. Brown, 366 U.S. 599, 6 L. Ed. 2d 563, 81 S. Ct. 1144
(1961) (plurality opinion), we upheld Sunday-closing laws against the claim
that they burdened the religious practices of persons whose religions compelled
them to refrain from work on other days. In Gillette v. United States,
401 U.S. 437, 461, 28 L. Ed. 2d 168, 91 S. Ct. 828 (1971), we sustained the
military Selective Service System against the claim that it violated free
exercise by conscripting persons who opposed a particular war on religious
grounds."
If such a neutral law of general applicability may
severely burden constitutionally protected interests in liberty, a comparable
burden on property owners should not be considered unreasonably onerous.
For example, in the case of
so-called "developmental exactions," we have paid special attention
to the risk that particular landowners might "be singled out to bear the
burden" of a broader problem not of his own making. Nollan, 483 U.S. at 835, n.4; see also
Pennell v. San Jose, 485 U.S. 1, 23, 99 L. Ed. 2d 1, 108 S. Ct. 849
(1988). Similarly, in distinguishing between the Kohler Act (at issue in Mahon)
and the Subsidence Act (at issue in Keystone), we found significant that
the regulatory function of the latter was substantially broader. Unlike the
Kohler [*1073] Act, which simply transferred back to the
surface owners certain rights that they had earlier sold to the coal companies,
the Subsidence Act affected all surface owners -- including the coal companies
-- equally. See Keystone, 480 U.S. at 486. Perhaps the most familiar
application of this principle of generality arises in zoning cases. A
diminution in value caused by a zoning regulation is far less likely to
constitute a taking if it is part of a general and comprehensive land-use plan,
see Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct.
114 (1926); conversely, "spot zoning"
is far more likely to constitute a taking, see Penn Central, 438
U.S. at 132, and n.28.
The presumption that a permanent
physical occupation, no matter how slight, effects a taking is wholly
consistent with this principle. A physical taking entails a certain amount of
"singling out." n8 Consistent with this principle, physical
occupations [***850] by third parties are more likely to effect
takings than other physical occupations. Thus, a regulation [**2924]
requiring the installation of a junction box owned by a third party, Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 73 L. Ed. 2d 868, 102
S. Ct. 3164 (1982), is more troubling than a regulation requiring the
installation of sprinklers or smoke detectors; just as an order granting third
parties access to a marina, Kaiser Aetna v. United States, 444 U.S. 164,
62 L. Ed. 2d 332, 100 S. Ct. 383 (1979), is more troubling than an order
requiring the placement of safety buoys in the marina.
n8 See Levmore, Takings, Torts, and Special Interests,
77 Va. L. Rev. 1333, 1352-1354 (1991).
In analyzing takings claims,
courts have long recognized the difference between a regulation that targets
one or two parcels of land and a regulation that enforces a statewide policy.
See, e. g., A. A. Profiles, Inc. v. Ft. Lauderdale, 850 F.2d 1483, 1488 (CA11
1988); Wheeler v. Pleasant Grove, 664 F.2d 99, 100 (CA5 1981); Trustees
Under Will of Pomeroy v. Westlake, 357 So. 2d 1299, 1304 (La. App. 1978);
see also Burrows v. Keene, 121 N.H. 590, 596, 432 A.2d 15, 21 (1981); Herman
Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324-325 (Mo. App.
1976); Huttig v. Richmond Heights,
[*1074] 372 S.W.2d 833, 842-843
(Mo. 1963). As one early court stated with regard to a waterfront regulation,
"If such restraint were in fact imposed upon the estate of one proprietor
only, out of several estates on the same line of shore, the objection would be
much more formidable." Commonwealth v. Alger, 61 Mass. 53, 102
(1851).
In considering Lucas' claim, the
generality of the Beachfront Management Act is significant. The Act does not
target particular landowners, but rather regulates the use of the coastline of
the entire State. See S. C. Code Ann. §
48-39-10 (Supp. 1990). Indeed, South Carolina's Act is best understood
as part of a national effort to protect the coastline, one initiated by the
federal Coastal Zone Management Act of 1972. Pub. L. 92-583, 86 Stat. 1280,
codified as amended at 16 U. S. C. §
1451 et seq. Pursuant to the federal Act, every coastal State has
implemented coastline regulations. n9 Moreover, the Act did not single out
owners of undeveloped land. The Act also prohibited owners of developed land
from rebuilding if their structures were destroyed, see 1988 S. C. Acts 634,
§ 3, n10 and what is equally
significant, from repairing erosion control devices, such as seawalls, see S.
C. Code Ann. § 48-39-290(B)(2) (Supp.
1990). In addition, in some situations, owners of developed land were required
to "renourish the beach . . . on a yearly basis with an amount . . . of sand
. . . not . . . less than one and one-half times the yearly volume of sand lost
due to erosion." 1988 S. C. Acts 634, §
3, p. 5140. n11 In short, the South Carolina Act imposed substantial
burdens on owners of developed and undeveloped
[*1075] [***851] land alike. n12 This generality indicates
that the Act is not an effort to expropriate owners of undeveloped land.
n9 See Zalkin, Shifting Sands and Shifting Doctrines:
The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone
Statute, 79 Calif. L. Rev. 205, 216-217, nn. 46-47 (1991) (collecting
statutes).
n10 This provision was amended in 1990. See S. C. Code
Ann. § 48-39-290(B) (Supp. 1990).
n11 This provision was amended in 1990; authority for
renourishment was shifted to local governments. See S. C. Code Ann. § 48-39-350(A) (Supp. 1990).
n12 In this regard, the Act more closely resembles the
Subsidence Act in Keystone than the Kohler Act in Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158 (1922), and more
closely resembles the general zoning scheme in Euclid v. Ambler Realty Co.,
272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926), than the specific landmark
designation in Penn Central Transportation Co. v. New York City, 438
U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978).
Admittedly, the economic impact of
this regulation is dramatic and petitioner's investment-backed expectations are
substantial. Yet, if anything, the costs to and expectations of the owners of
developed land are even greater: I doubt, however, that the cost to owners of
developed land of renourishing the beach and allowing their seawalls to
deteriorate effects a taking. The costs imposed on [**2925]
the owners of undeveloped land, such as petitioner, differ from these
costs only in degree, not in kind.
The impact of the ban on
developmental uses must also be viewed in light of the purposes of the Act. The
legislature stated the purposes of the Act as "protecting, preserving,
restoring and enhancing the beach/dune system" of the State not only for
recreational and ecological purposes, but also to "protect life and
property." S. C. Code Ann. §
48-39-260(1)(a) (Supp. 1990). The State, with much science on its side,
believes that the "beach/dune system [acts] as a buffer from high tides,
storm surge, [and] hurricanes." Ibid. This is a traditional and
important exercise of the State's police power, as demonstrated by Hurricane
Hugo, which in 1989, caused 29 deaths and more than $ 6 billion in property
damage in South Carolina alone. n13
n13 Zalkin, 79 Calif. L. Rev., at 212-213.
In view of all of these factors,
even assuming that petitioner's property was rendered valueless, the risk
inherent in investments of the sort made by petitioner, the generality of the
Act, and the compelling purpose motivating the South [*1076]
Carolina Legislature persuade me that the Act did not effect a taking of
petitioner's property.
Accordingly, I respectfully
dissent.
Statement of JUSTICE SOUTER.
I would dismiss the writ of
certiorari in this case as having been granted improvidently. After briefing
and argument it is abundantly clear that an unreviewable assumption on which
this case comes to us is both questionable as a conclusion of Fifth Amendment
law and sufficient to frustrate the Court's ability to render certain the legal
premises on which its holding rests.
The petition for review was
granted on the assumption that the State by regulation had deprived the owner
of his entire economic interest in the subject property. Such was the state trial court's conclusion,
which the State Supreme Court did not review. It is apparent now that in light
of our prior cases, see, e. g., Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U.S. 470, 493-502, 94 L. Ed. 2d 472, 107 S. Ct. 1232
(1987); Andrus v. Allard, 444 U.S. 51, 65-66, 62 L. Ed. 2d 210, 100 S.
Ct. 318 (1979); Penn Central Transportation Corp. v. New York City, 438
U.S. 104, 130-131, [***852] 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978), the
trial court's conclusion is highly questionable. While the respondent now
wishes to contest the point, see Brief for Respondent 45-50, the Court is
certainly right to refuse to take up the issue, which is not fairly included
within the question presented, and has received only the most superficial and
one-sided treatment before us.
Because the questionable
conclusion of total deprivation cannot be reviewed, the Court is precluded from
attempting to clarify the concept of total (and, in the Court's view,
categorically compensable) taking on which it rests, a concept which the Court
describes, see ante, 505 U.S. at 1016-1017, n.6, as so uncertain under
existing law as to have fostered inconsistent pronouncements by the Court
itself. Because that concept is left uncertain, so is the significance of the
exceptions to the compensation requirement that the Court proceeds to
recognize. [*1077] This alone is enough to show that there is
little utility in attempting to deal with this case on the merits.
The imprudence of proceeding to
the merits in spite of these unpromising circumstances is underscored by the
fact that, in doing so, the Court cannot help but assume something about the
scope of the uncertain concept of total deprivation, even when it is barred
from explicating total deprivation directly. Thus, when the Court concludes
that the application of nuisance law provides an exception to the general rule
that complete denial of economically beneficial use of property amounts to a
compensable taking, the Court will be understood to suggest (if it does not
assume) that there are in fact circumstances
[**2926] in which state-law
nuisance abatement may amount to a denial of all beneficial land use as that
concept is to be employed in our takings jurisprudence under the Fifth and
Fourteenth Amendments. The nature of nuisance law, however, indicates that
application of a regulation defensible on grounds of nuisance prevention or
abatement will quite probably not amount to a complete deprivation in fact. The
nuisance enquiry focuses on conduct, not on the character of the property on
which that conduct is performed, see 4 Restatement (Second) of Torts § 821B (1979) (public nuisance); id.,
§ 822 (private nuisance), and the
remedies for such conduct usually leave the property owner with other
reasonable uses of his property, see W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts §
90 (5th ed. 1984) (public nuisances usually remedied by criminal
prosecution or abatement), id., §
89 (private nuisances usually remedied by damages, injunction, or abatement);
see also, e. g., Mugler v. Kansas, 123 U.S. 623, 668-669, 31 L. Ed. 205,
8 S. Ct. 273 (1887) (prohibition on use of property to manufacture intoxicating
beverages "does not disturb the owner in the control or use of his
property for lawful purposes, nor restrict his right to dispose of it, but is
only a declaration by the State that its use . . . for certain forbidden
purposes, is prejudicial to the public interests"); Hadacheck v.
Sebastian, [*1078] 239 U.S. 394, 412, 36 S. Ct. 143, 60 L. Ed.
348 (1915) (prohibition on operation of brickyard did not prohibit extraction
of clay from which bricks were produced). Indeed, it is difficult to imagine
property that can be used only to
[***853] create a nuisance, such
that its sole economic value must presuppose the right to occupy it for such
seriously noxious activity.
The upshot is that the issue of
what constitutes a total deprivation is being addressed by indirection, and
with uncertain results, in the Court's treatment of defenses to compensation claims.
While the issue of what constitutes total deprivation deserves the Court's
attention, as does the relationship between nuisance abatement and such total
deprivation, the Court should confront these matters directly. Because it can
neither do so in this case, nor skip over those preliminary issues and deal
independently with defenses to the Court's categorical compensation rule, the
Court should dismiss the instant writ and await an opportunity to face the
total deprivation question squarely. Under these circumstances, I believe it
proper for me to vote to dismiss the writ, despite the Court's contrary
preference. See, e. g., Welsh v. Wisconsin, 466 U.S. 740, 755, 80
L. Ed. 2d 732, 104 S. Ct. 2091 (1984) (Burger, C. J.); United States v.
Shannon, 342 U.S. 288, 294, 96 L. Ed. 321, 72 S. Ct. 281 (1952)
(Frankfurter, J.).