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Footnotes |
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1. Justice Blackmun insists that this aspect of
Lucas’s claim is “not justiciable” … , because Lucas never fulfilled his
obligation under Williamson County
Regional Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985), to “submi[t] a plan for
development of [his] property” to the proper state authorities. … 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. … Nor does the
peculiar posture of this case mean that we are without Article III
jurisdiction, as Justice Blackmun apparently believes … .
Given the South Carolina Supreme Court’s dismissive foreclosure of
further pleading and adjudication with respect to the pre-1990 component of
Lucas’s taking 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 …
(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 (1987). Justice Blackmun finds it “baffling” … that we grant standing here, whereas
“just a few days ago, in Lujan v. Defenders of Wildlife, 504 U.S. ___ (1992),”
we denied standing. He sees in that
strong evidence to support his repeated imputations that the Court “presses”
to take this case … , is “eager to decide” it … , and is unwilling to “be
denied” … . 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. 2. 2. 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. … 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. 3. 3. 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 taking challenge” and not for the
point that “denial of such use is
sufficient to establish a taking claim regardless of any other
consideration.” … The cases say,
repeatedly and unmistakably, that “‘[t]he 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 “alter[ing] the long-settled rules of
review” by foisting on the State “the burden of showing [its] regulation is
not a taking.” … 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. New York Crime Victims Board, 502
U.S., (slip op., at 8) (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. 4. 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
(1977), aff’d, 438 U.S. 104 (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 taking 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 (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 (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. 5. 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.” … 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, “[t]he
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 (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.” … 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 (1982) (interest in excluding
strangers from one’s land). 6. 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 … that the finding was erroneous.
Instead, we decide the question presented under the same factual
assumptions as did the Supreme Court of South Carolina. See Oklahoma
City v. Tuttle, 471 U.S. 808,
816 (1985). 7. 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” [citation omitted] 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 §
48–39250(1)(b) (Supp. 1991), in “provid[ing] habitat for numerous species of
plants and animals, several of which are threatened or endangered,” §
48–39–250(1)(c), and in “provid[ing] 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.” …
He says “[n]othing in the record undermines [this] assessment” … ,
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)), 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 § 48–39–290(D)(1) (Supp. 1991). 8. 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.
… 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. 9. E.g., Mugler v. Kansas, 123
U.S. 623 (1887) (prohibition upon use of a building as a brewery; other uses
permitted); Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (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 (1915) (declaration that livery stable constituted a public
nuisance; other uses of the property permitted); Hadacheck v. Sebastian,
239 U.S. 394 (1915) (prohibition of brick manufacturing in residential area;
other uses permitted); Goldblatt v.
Hempstead, 369 U.S. 590 (1962)
(prohibition on excavation; other uses permitted). 10. Drawing on our First
Amendment jurisprudence [citation omitted], Justice Stevens would “loo[k] to the generality
of a regulation of property” to determine whether compensation is owing.
… The Beachfront Management Act is
general, in his view, because it “regulates the use of the coastline of the
entire state.” … 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 [citation omitted], 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’ approach renders the Takings Clause little more than a
particularized restatement of the Equal Protection Clause. 11. After accusing us of
“launch[ing] a missile to kill a mouse” … , 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 (1897)—which, as Justice Blackmun acknowledges, occasionally included outright physical appropriation of land wit'mso-fareast-font-family:"MS Mincho"'> is correct that early
constitutional theorists did not believe the Takings Clause embraced
regulations of property at all … , 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 … (“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. 12. 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. [Citations omitted.] 13. Justice Blackmun decries our reliance on
background nuisance principles at least in part because he believes those
principles to be as manipulable as we find the “harm prevention”/”benefit
conferral” dichotomy … . 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. 14. 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. … 15. Even more baffling, given its decision, just a few days ago, in Lujan v. Defenders of Wildlife, ___ U.S. ___ (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. …
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.”
… The trial court made no findings of
fact that Lucas had any plans to use the property from 1988 to 1990. “‘[S]ome
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.” [Lujan,
supra.] 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” … and failed
to demonstrate any immediate concrete plans to build or sell. 16. 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-taking claim. … 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-taking
claim in the state courts. 17. That same year, an appeal came to the Court asking “[w]hether
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.” …
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, appeal dism’d, 371
U.S. 36 (1962). 18. 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, (1989), cert. denied, 493 U.S. 1056 (1990). 19. The Court’s suggestion that Agins
v. Tiburon, 447 U.S. 255 (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 … 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 taking challenge. See Hodel
v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U.S. 264, 295–297 (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 taking 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 (1987), and Keystone Bituminous
Coal v. DeBenedictis, 480 U.S.
470 (1987), for its new categorical rule. …
I prefer to rely on the directly contrary holdings in cases such as Mugler and Hadacheck, 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. 20. 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.” … Nor
apparently are we to find this compact in the early federal taking 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. … I cannot imagine where the Court finds its
“historical compact,” if not in history. 21. 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. Tiburon, 447
U.S., 255, 260 (1980) (emphasis added), indicating that this “total takings”
test did not apply to other estates.
Today, however, the Court suggests that a regulation may effect a
total taking of any real property
interest. … 22. 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). |
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URL:
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