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LUCAS
v. SOUTH CAROLINA COASTAL COUNCIL Supreme
Court of the United States |
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Scalia, J. In 1986, petitioner
David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in
Charleston County, South Carolina, on which he intended to build
single-family homes. In 1988,
however, the South Carolina Legislature enacted the Beachfront Management
Act, S.C. Code § 48–39–250 et seq.
(Supp. 1990) (Act), which had the direct effect of barring petitioner from
erecting any permanent habitable structures on his two parcels. See § 48–39–290(A). A state trial court found that this
prohibition rendered Lucas’s parcels “valueless.” … This case requires us to decide whether the Act’s dramatic
effect on the economic value of Lucas’s lots accomplished a taking of private
property under the Fifth and Fourteenth Amendments requiring the payment of
“just compensation.” … 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 … , the
legislature enacted a Coastal Zone Management Act of its own. See S.C. Code § 48–39–10 et seq. (1987). In its original form, the South Carolina
Act required owners of coastal zone land that qualified as a “critical area”
… to obtain a permit from the newly created South Carolina Coastal 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].” [Citation omitted.] 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
Charleston. Toward the close of the
development cycle for one residential subdivision known as “Beachwood East,”
Lucas in 1986 purchased the two lots at issue in this litigation for his own
account. No portion of the lots,
which were located approximately 300 feet from the beach, qualified as a
“critical area” under the 1977 Act; accordingly, at the time Lucas acquired
these parcels, he was not legally obliged to obtain a permit from the Council
in advance of any development activity.
His intention with respect to the lots was to do what the owners of
the immediately adjacent parcels had already done: erect single-family
residences. He commissioned
architectural drawings for this purpose. 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 landward-most “point[s]
of erosion … during the past forty years” in the region of the Isle of Palms
that includes Lucas’s lots. [Citation
omitted.] In action not challenged
here, the Council fixed this baseline landward of Lucas’s parcels. That was significant, for under the Act
construction of occupable improvements was flatly prohibited seaward of a
line drawn 20 feet landward of, and parallel to, the baseline [citation
omitted]. The Act provided no
exceptions. … 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. … The
trial court … found that the Beachfront Management Act decreed a permanent
ban on construction insofar as Lucas’s lots were concerned, and that this
prohibition “deprive[d] Lucas of any reasonable economic use of the lots … ,
eliminated the unrestricted right of use, and render[ed] them valueless.”
… 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. … The
Supreme Court of South Carolina reversed.
It found dispositive what it described as Lucas’s concession “that the
Beachfront Management Act [was] properly and validly designed to preserve …
South Carolina’s beaches.” [Citation
omitted.] 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. [Citation
omitted.] The Court ruled that when a
regulation respecting the use of property is designed “to prevent serious
public harm” … , no compensation is owing under the Takings Clause regardless
of the regulation’s effect on the property’s value. … 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 authorize the Council, in certain circumstances, to issue
“special permits” for the construction or reconstruction of habitable
structures seaward of the baseline.
[Citation omitted.] 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 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. County of Yolo, 477 U.S. 340,
351 (1986). [Further citation
omitted.] 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 of Johnson City v. Hamilton Bank, 473 U.S. 172, 190 (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 … . 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.
[Citation omitted.] 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
(1987) (holding that 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.”
… 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. 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.1 That there is a discretionary “special permit” 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. [Citation omitted.] We leave for decision on remand, of
course, the questions left unaddressed by the South Carolina Supreme Court as
a consequence of its categorical disposition.2
… Prior to
Justice Holmes’ exposition in Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393
(1922), it was generally thought that the Takings Clause reached only a
“direct appropriation” of property [citation omitted], or the functional
equivalent of a “practical ouster of [the owner’s] possession.” [Citations omitted.] 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 under the police
power, “the natural tendency of human nature [would be] to extend the
qualification more and more until at last private property
disappear[ed].” 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. 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 “engag[e] in … essentially ad hoc, factual
inquiries,” Penn Central Transportation
Co. v. New York City, 438 U.S.
104, 124 (1978) (quoting Goldblatt
v. Hempstead, 369 U.S. 590, 594
(1962)). See Epstein, Takings:
Descent and Resurrection, 1987 Sup. 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 (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 … , even though the facilities occupied at most only 1½
cubic feet of the landlords’ property … . 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 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987); Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264, 295–296 (1981).3 As we have said on numerous occasions, 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).4 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 (Brennan, J., dissenting). “[F]or
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., 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,
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. … 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 through a dam project that floods
private property.” San Diego Gas & Elec. Co., supra, at 652 (Brennan, J.,
dissenting). The many statutes on the
books, both state and federal, that 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. [Citations omitted.] 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.5
… The
trial court found Lucas’s two beachfront lots to have been rendered valueless
by respondent’s enforcement of the coastal-zone construction ban.6 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 land might occasion.
[Citation omitted.] By
neglecting to dispute the findings enumerated in the Act or otherwise to
challenge the legislature’s purposes, petitioner “concede[d] that the
beach/dune area of South Carolina’s shores is an extremely valuable public
resource; that the erection of new construction, inter alia, contributes to the erosion and destruction of this
public resource; and that discouraging new construction in close proximity to
the beach/dune area is necessary to prevent a great public harm.” [Citation omitted.] In the court’s view, these concessions
brought petitioner’s challenge within a long line of this Court’s cases
sustaining against 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 (1887) (law prohibiting manufacture of
alcoholic beverages); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (law
barring operation of brick mill in residential area); Miller v. Schoene, 276
U.S. 272 (1928) (order to destroy diseased cedar trees to prevent infection
of nearby orchards); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (law
effectively preventing continued operation of quarry in residential area). 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
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. … 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” … . “Harmful or noxious
use” analysis was, in other words, simply the progenitor of our more
contemporary statements that “land-use regulation does not effect a taking if
it ‘substantially advance[s] 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 (1926). 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 example, to describe in either
fashion the ecological, economic, and aesthetic 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.7 [Citations
omitted.] Whether one or the other of
the competing characterizations will come to one’s lips in a particular case
depends primarily upon one’s evaluation of the worth of competing uses of
real estate. … 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. …
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.8 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 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).9 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.10 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; “[a]s 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 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
(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.11 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
title. Compare Scranton v. Wheeler,
179 U.S. 141, 163 (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.12 On this
analysis, the owner of a lake bed, 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 not proscribe a productive use that was previously permissible under
relevant property and nuisance principles.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, 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 Restatement (Second)
of Torts, supra, § 827, comment
g. So also does the fact that other
landowners, similarly situated, are permitted to continue the use denied to
the claimant. 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 [citation omitted]. 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, 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 …
.” [Citation omitted.] 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 he now intends in the circumstances in which the
property is presently found. Only on
this showing can the State fairly claim that, in proscribing all such
beneficial uses, the Beachfront Management Act is taking nothing.13 * * * The
judgment is reversed and the cause remanded for proceedings not inconsistent
with this opinion. So ordered. Kennedy, J., concurring in the judgment. … The
South Carolina Court of Common Pleas found that petitioner’s real property
has been rendered valueless by the State’s regulation. … The finding appears to presume that the
property has no significant market value or resale potential. This is a curious finding, and I share the
reservations of some of my colleagues about a finding that a beach front lot
loses all value because of a development restriction. … 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 (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. Tiburon, 447 U.S. 255, 260
(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 (1979); Penn Central
Transportation Co. v. New York City,
438 U.S. 104, 124 (1978); [futher citation omitted]. 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
(1887). The rights conferred by the
Takings Clause and the police power of the State may coexist without
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. 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 (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 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. [Citation omitted.] 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 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 (1922). With
these observations, I concur in the judgment of the Court. Blackmun, J., dissenting. Today
the Court launches a missile to kill a mouse. … [Justice
Blackmun adds the following to the Court’s recital of the facts and
legislative background of the case:] 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.14 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. …
Between 1957 and 1963, petitioner’s property was under water. …
Between 1963 and 1973 the shoreline was 100 to 150 feet onto petitioner’s
property. … In 1973 the first line of
stable vegetation was about halfway through the property. … Between 1981 and 1983, the Isle of Palms
issued 12 emergency orders for sandbagging to protect property in the Wild
Dune development. … 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. … The
South Carolina Supreme Court found that the Beach 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 of “protect[ing] life
and property by serving as a storm barrier which dissipates wave energy and
contributes to shoreline stability in an economical and effective manner.” §
48–39–250(1)(a). 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
it.” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491–492 (1987) … . 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 (1962); Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926); Gorieb v. Fox, 274 U.S. 603, 608 (1927); Mugler v. Kansas, 123 U.S. 623 (1887). … 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 (1986),
and the utilization of 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 (1981); Agins
v. Tiburon, 447 U.S. 255, 260
(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 (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. … 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. 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. … 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 § 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. … If
he was correct, the Council’s 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.
“[W]e 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 (1985). See also Williamson
County, 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).15 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 taking
jurisprudence based on the trial court’s finding that the property had lost
all economic value. 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 (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. [Citations
omitted.] 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. 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. … The appraiser’s value
was based on the fact that the “highest and best use of these lots … [is]
luxury single family detached dwellings.” …
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 was
“total.” … I agree with the Court …
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 circumstance[s].” … Clearly,
the Court was eager to decide this case.16 But eagerness, in the absence of proper
jurisdiction, must—and in this case should have been—met with restraint. … 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 (1938). … 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 prohibit is a
background common-law nuisance or property principle. … 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, 123 U.S. 623, 668–669
(1887). 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.” [Citation omitted.] Mugler was only the beginning in a long
line of cases. … In Hadacheck v. Sebastian, 239 U.S. 394 (1915), the Court upheld an ordinance
prohibiting a brickyard, although the owner had made excavations on the land
that prevented it from being utilized for any purpose but a brickyard. Id.,
at 405. In Miller v. Schoene, 276
U.S. 272 (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. … 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. 369 U.S., at 596. “Although a comparison of values before
and after is relevant,” the Court stated, “it is by no means conclusive.”17 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 Lutheran Church v. Los Angeles County, 482 U.S. 304
(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.18 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.”19 480 U.S., at 489, n.
18. … 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. See Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 418 (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”). … 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.” … Until
today, the Court explicitly had rejected the contention that the government’s
power to act without paying compensation turns on whether the prohibited
activity is a common-law nuisance. 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 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, 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. 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.” … Since the characterization
will depend “primarily upon one’s evaluation of the worth of competing uses
of real estate” … , the Court decides a legislative judgment of this kind no
longer can provide the desired “objective, value-free basis” for upholding a
regulation. … The Court, however,
fails to explain how its proposed common law alternative escapes the same
trap. 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” … 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. … “ Michelman,
Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988). … Even
more perplexing, however, is the Court’s reliance on common-law principles of
nuisance in its quest for a value-free taking 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 law is simply a determination whether a
particular use causes 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.” Once one abandons the level of generality
of sic utere tuo ut alienum non laedas
… , one searches in vain, I think, for anything resembling a principle in the
common law of nuisance. … 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.” … 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.” … It is not clear from the Court’s 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 public, and every one hath benefit by it.’” F.
Bosselman, D. Callies & J. Banta, The Taking Issue 80–81 (1973) … . 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.
… [Further historical discussion
omitted.] … In
short, I find no clear and accepted “historical compact” or “understanding of
our citizens” justifying the Court’s new taking 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 Taking 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.20 … The
Court makes sweeping and, in my view, misguided and unsupported changes in
our taking doctrine. While it limits
these changes to the most narrow subset of government 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. Stevens, J., dissenting. … In
addition to lacking support in past decisions, the Court’s new
[“categorical”] 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. … 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. … 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 multi-family home on
a specific lot, with the result that a zoning regulation that allows only
single-family homes would render the investor’s property interest
“valueless.”21 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. … 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 compensated” … than it quickly establishes an
exception to that rule. 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.” … The Court thus rejects the basic holding in Mugler v. Kansas, 123 U.S. 623 (1887).
There we held that a state-wide 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. … 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. The Court’s holding today effectively freezes the State’s common law, denying the legislature much of its traditional power to revise the law governing the rights and uses of property. … 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 (1979); the importance of wetlands, see, e.g., 16 U.S.C. § 3801 et seq.; and the vulnerability of
coastal 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.22… Accordingly,
I respectfully dissent. Souter, J. (statement). 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
(1987); Andrus v. Allard, 444 U.S. 51, 65–66 (1979); Penn Central Transportation Corp. v. New York City, 438 U.S. 104, 130–131
(1978), the trial court’s conclusion is highly questionable. While the respondent now wishes to contest
the point … , 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 … 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. 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 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 [citations omitted], and the
remedies for such conduct usually leave the property owner with other
reasonable uses of his property [citations omitted]. Indeed, it is difficult to imagine
property that can be used only to 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. [Citations omitted.] Note In the
same term in which it decided Lucas,
the Court held in Yee v. City of Escondido, 503 U.S. 519 (1992), that the
plaintiff had no valid claim of a physical taking, where the city had fixed
the rental rates for mobile home pads at below the market rate and the state
had made it diffcult—the plaintiff claimed virtually impossible—to evict such
tenants, even when the tenant had sold his mobile home to someone else. In doing this the Court diapproved the
rulings to the contrary of two federal circuit courts of appeal and affirmed
the holding of the California Court of Appeal. The Court was at pains, however, to point out that the plaintiff
might have a valid claim of regulatory taking, but did not consider this
claim because it had not been raised in the petition for certiorari. The judgment was unanimous. Justices Blackmun and Souter concurred,
both, in different ways, refusing to join in the Court’s statements about
regulatory takings. |
Please send comments to Rosemary Spang
URL: http://www.courses.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Lucas1.html
last modified: 08/08/09
Copyright © 2003. Charles Donahue, Jr.