Lucas v. South Carolina Coastal Council

No. 91-453

Argued March 2, 1992

Decided June 29, 1992

505 U.S. 1003

CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA

Syllabus



In 1986, petitioner Lucas bought two residential lots on a South

Carolina barrier island, intending to build single-family homes such as

those on the immediately adjacent parcels.  At that time, Lucas' lots

were not subject to the State's coastal zone building permit

requirements.  In 1988, however, the state legislature enacted the

Beachfront Management Act, which barred Lucas from erecting any

permanent habitable structures on his parcels.  He filed suit against

respondent state agency, contending that, even though the Act may have

been a lawful exercise of the State's police power, the ban on

construction deprived him of all "economically viable use" of his

property, and therefore effected a "taking" under the Fifth and

Fourteenth Amendments that required the payment of just compensation. 

See, e.g., Agins v. Tiburon, 447 U.S. 255, 261.  The state trial

court agreed, finding that the ban rendered Lucas' parcels "valueless,"

and entered an award exceeding $1.2 million.  In reversing, the State

Supreme Court held itself bound, in light of Lucas' failure to attack

the Act's validity, to accept the legislature's "uncontested . . .

findings" that new construction in the coastal zone threatened a

valuable public resource.  The court ruled that, under the Mugler v.

Kansas, 123 U.S. 623, line of cases, when a regulation is designed to

prevent "harmful or noxious uses" of property akin to public nuisances,

no compensation is owing under the Takings Clause regardless of the

regulation's effect on the property's value.



Held:



1. Lucas' takings claim is not rendered unripe by the fact that he may

yet be able to secure a special permit to build on his property under an

amendment to the Act passed after briefing and argument before the State

Supreme Court, but prior to issuance of that court's opinion.  Because

it declined to rest its judgment on ripeness grounds, preferring to

dispose of the case on the merits, the latter court's decision

precludes, both practically and legally, any takings claim with respect

to Lucas' preamendment deprivation.  Lucas has properly alleged

injury-in-fact with respect to this preamendment deprivation, and it

would not accord with sound process in these circumstances to insist

that he pursue the late-created procedure before that component of his

takings claim can be considered ripe.  Pp. 1010-1014. [505 U.S. 1004]



2. The State Supreme Court erred in applying the "harmful or noxious

uses" principle to decide this case.  Pp. 1014-1032.



(a) Regulations that deny the property owner all "economically viable

use of his land" constitute one of the discrete categories of regulatory

deprivations that require compensation without the usual case-specific

inquiry into the public interest advanced in support of the restraint. 

Although the Court has never set forth the justification for this

categorical rule, the practical -- and economic -- equivalence of

physically appropriating and eliminating all beneficial use of land

counsels its preservation.  Pp. 1014-1019.



(b) A review of the relevant decisions demonstrates that the "harmful or

noxious use" principle was merely this Court's early formulation of the

police power justification necessary to sustain (without compensation)

any regulatory diminution in value; 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; and that, therefore, noxious-use logic cannot be the basis for

departing from this Court's categorical rule that total regulatory

takings must be compensated.  Pp. 1020-1026.



(c) Rather, the question must turn, in accord with this Court's

"takings" jurisprudence, on citizens' historic understandings regarding

the content of, and the State's power over, the "bundle of rights" that

they acquire when they take title to property.  Because it is not

consistent with the historical compact embodied in the Takings Clause

that title to real estate is held subject to the State's subsequent

decision to eliminate all economically beneficial use, a regulation

having that effect cannot be newly decreed, and sustained, without

compensation's being paid the owner.  However, no compensation is owed

-- in this setting as with all takings claims -- if the State's

affirmative decree simply makes explicit what already inheres in the

title itself, in the restrictions that background principles of the

State's law of property and nuisance already place upon land ownership. 

Cf. Scranton v. Wheeler, 179 U.S. 141, 163.  Pp. 1027-1031.



(d) Although it seems unlikely that common law principles would have

prevented the erection of any habitable or productive improvements on

Lucas' land, this state law question must be dealt with on remand.  To

win its case, respondent cannot simply 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, but must identify

background principles of nuisance and property law that prohibit the

uses Lucas now intends in the property's present circumstances.  P.

1031.



304 S.C. 376, 404 S.E.2d 895 (1991), reversed and remanded. [505 U.S.

1005]



SCALIA, J., delivered the opinion of the Court, in which REHNQUIST,

C.J., and WHITE, O'CONNOR, and THOMAS, JJ., joined. KENNEDY, J., filed

an opinion concurring in the judgment, post, p. 1032.  BLACKMUN J.,

post, p. 1036, and STEVENS, J., post, p. 1061, filed dissenting

opinions.  SOUTER, J., filed a separate statement, post, p. 1076.

[505 U.S. 1006] SCALIA, J., lead opinion



JUSTICE SCALIA delivered the opinion of the Court.



In 1986, petitioner David H. Lucas paid $975,000 for two residential

lots on the Isle of Palms in Charleston County, [505 U.S. 1007] 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  48-39250 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' parcels

"valueless."  App. to Pet. for Cert. 37.  This case requires us to

decide whether the Act's dramatic effect on the economic value of Lucas'

lots accomplished a taking of private property under the Fifth and

Fourteenth Amendments requiring the payment of "just compensation." 

U.S.Const., Amdt. 5. 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  4839-10 et seq. (1987).  In its original form, the South

Carolina Act required owners of coastal zone land that qualified as a

"critical area" (defined in the legislation to include beaches and

immediately adjacent sand dunes, [505 U.S. 1008]  439-10(J)) 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]."   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 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' 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' lots.   48-39-280(A)(2) (Supp.1988).{1}  In action

not challenged here, the Council fixed this baseline landward of Lucas'

parcels.  That was significant, for under the Act, [505 U.S. 1009]

construction of occupiable improvements{2} was flatly prohibited

seaward of a line drawn 20 feet landward of, and parallel to, the

baseline,  48-39290(A) (Supp.1988).  The Act provided no exceptions. 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, 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' 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. Id. at 37.  The court thus concluded

that Lucas' 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' concession "that the [505 U.S. 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 (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



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

[505 U.S. 1011] authorize the Council, in certain circumstances, to

issue "special permits" for the construction or reconstruction of

habitable structures seaward of the baseline.  See S.C.Code 

48-39-290(D)(1) (Supp.1991).  According to the Council, this amendment

renders Lucas' 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).  See also Agins v. Tiburon, 447 U.S. 255, 260 (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 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, 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' takings claim on the merits.  Compare, e.g., San

Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 631-632

(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' 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 [505 U.S. 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.



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.{3}  That there is a discretionary

[505 U.S. 1013] "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' 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. pending, No. 91-941.{4}  We leave for

decision on remand, of course, the questions left unaddressed by the

South [505 U.S. 1014] Carolina Supreme Court as a consequence of its

categorical disposition.{5} III A



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, Legal Tender Cases,

12 Wall. 457, 551 (1871), or the functional equivalent of a "practical

ouster of [the owner's] possession."  Transportation Co. v. Chicago, 99

U.S. 635, 642 (1879).  See also Gibson v. United States, 166 U.S. 269,

275-276 (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 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. [505 U.S. 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 "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, id. at

435-440, even though the facilities occupied, at most, only 1 1/2

cubic feet of the landlords' property, see id. at 9458 U.S. 438438, n.

16.  See also United States v. Causby, 328 U.S. 256, 265, and n. 10

(1946) (physical invasions of airspace); cf. Kaiser Aetna v. United

States, 444 U.S. 164 (1979) (imposition of navigational servitude upon

private marina).



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 [505 U.S. 1016] U.S. 264, 295-296 (1981).{6}  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, 447

U.S. at 260 (citations omitted) (emphasis added).{7} [505 U.S.

1017]



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 profit 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 [505 U.S. 1018] 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.  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 through a dam project

that floods private property. San Diego Gas & Elec. Co., supra, 450 U.S.

at 652 (Brennan, J., dissenting).  The many statutes on the books,

both state and federal, that [505 U.S. 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);  39213923 (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.  11-1101 1108 (1987)

(authorizing acquisition of "protective easements" and other rights in

real property adjacent to State's historic, architectural,

archaeological, or cultural resources).



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.{8} [505 U.S. 1020] B



The trial court found Lucas' two beachfront lots to have been rendered

valueless by respondent's enforcement of the coastal-zone construction

ban.{9}  Under Lucas' 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 [505 U.S. 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{10} or otherwise to challenge the

legislature's purposes, [505 U.S. 1022] 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. 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 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 [505 U.S. 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 conclude[s] 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 Commission, 483 U.S.

at 834-835 ("Our cases have not elaborated on the standards for

determining what constitutes a `legitimate state interest[,]' [but]

[t]hey 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": [T]he 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 induce[d society] to shift the cost to a pa[rt]icular

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 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 [505 U.S. 1024] "land use regulation

does not effect a taking if it `substantially advance[s] legitimate

state interests'. . . ."  Nollan, supra, 483 U.S. at 834, (quoting

Agins v. Tiburon, 447 U.S. at 260); see also Penn Central

Transportation Co., supra, 438 U.S. 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' 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.{11}  Compare, e.g., Claridge v.

New Hampshire [505 U.S. 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 "preserv[ing]

marshlands from encroachment or destruction").  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.  See Restatement (Second) of Torts  822,

Comment 9, p. 112 (1979) ("[p]ractically 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 he 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) ("[T]he 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' 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.{12} [505 U.S. 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 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).{13} [505 U.S. 1027]



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.{14}  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 [505 U.S. 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 (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.{15}



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 preexisting limitation upon the

landowner's [505 U.S. 1029] 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.{16}



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 not proscribe a productive

use that was previously permissible [505 U.S. 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 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 (1972); see, e.g., Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1011-1012 (1984); Hughes v. Washington, 389 U.S.

290, 295 (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.{17}



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, [505 U.S. 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 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,

Curtin v. Benson, 222 U.S. 78, 86 (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, 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 (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 he now intends in the

circumstances in which the property is presently found.  Only on this

showing can [505 U.S. 1032] the State fairly claim that, in proscribing

all such beneficial uses, the Beachfront Management Act is taking

nothing.{18}



The judgment is reversed, and the cause remanded for proceedings not

inconsistent with this opinion.



So ordered. KENNEDY, J., concurring



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 at 1041 (BLACKMUN, J.,

dissenting); post at 1061-1062 (STEVENS, J., dissenting); post 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  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 [505 U.S. 1033]

what has occurred in the past.  The Beachfront Management Act was

enacted in 1988.  S.C.Code  48-39-250 et seq. (Supp.1990).  It may have

deprived petitioner of the use of his land in an interim period.  

48-39290(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

permanent ones.  First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 318 (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 of 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 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 [505 U.S. 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 beach front lot loses all value

because of a development restriction.  Post at 1043-1045 (BLACKMUN,

J., dissenting); post at 1065, n. 3 (STEVENS, J., dissenting); post

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 (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); see also W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (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 (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. [505 U.S. 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

(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.  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 [505 U.S. 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 (1922).



With these observations, I concur in the judgment of the Court.

BLACKMUN, J., dissenting



JUSTICE BLACKMUN, dissenting.



Today the Court launches a missile to kill a mouse.



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 [505 U.S. 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

[p]reventing or significantly reducing threats to life and the

destruction of property by eliminating development and redevelopment in

high-hazard areas.{1} 16 U.S.C.  1456b(a)(2) (1988 ed., Supp. II).



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 Council, and the construction

of any habitable structure was 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 [505 U.S. 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 (March 1987).  In response, South Carolina enacted

the Beachfront Management Act on July 1, 1988.  S.C.Code  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 water mark to a setback line

established on the basis of "the best scientific and historical data"

available.{2}  S.C.Code  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.{3}  The area is notoriously unstable. 

In roughly half of the last 40 years, all of 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 half-way through the

property.  Id. at 80.  Between 1981 and 1983, the Isle of Palms issued

12 emergency orders for [505 U.S. 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 half-way onto one of his lots.  Id. at 102.

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 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  4839-250(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 [505 U.S. 1040] it. Keystone Bituminous Coal Assn. v.

DeBenedictis, 480 U.S. 470, 491-492 (1987) (internal quotations

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 (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).



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 v. Hartford Fire Ins. Co., 282 U.S. 251, 257-258 (1931)

(Brandeis, J.), and because its determination [505 U.S. 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 (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.  See ante 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.  [505

U.S. 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.{4}



From the very beginning of this litigation, respondent has argued that

the courts: "lac[k] 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 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  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

[505 U.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. [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).{5}



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 [505 U.S. 1044] had lost all economic

value.{6}  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.  See,

e.g., Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891

(1972) cert. denied, 409 U.S. 1108 (1973); Turner v. County of Del

Norte, 24 Cal.App.3d 311, 101 Cal.Rptr. 93 (19721; 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.



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 [505 U.S. 1045] was "total."  Record

128 (findings of fact).  I agree with the Court, ante 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

circumstance[s]."  Ante at 1017.



Clearly, the Court was eager to decide this case.{7}  But eagerness,

in the absence of proper jurisdiction, must -- and in this case should

have been -- met with restraint. 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 (1938).  Indeed, we have

said the legislature's judgment is "well-nigh conclusive."  Berman v.

[505 U.S. 1046] Parker, 348 U.S. 26, 32 (1954).  See also Sweet v.

Rechel, 159 U.S. 380, 392 (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 "emphasize[s]" the State must do more than merely proffer its

legislative judgments to avoid invalidating its law.  Ante 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 [505 U.S. 1047] prohibit is a background common law nuisance or

property principle.  See ante at 1028-1031. A



I first question the Court's rationale in creating a category that

obviates a "case-specific inquiry into the public interest advanced,"

ante at 1015, if all economic value has been lost.  If one fact about

the Court's taking 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 (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 (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, 123 U.S. [505 U.S. 1048] at 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."  Id. at 664; see also id. at 668.



Mugler was only the beginning in a long line of cases.{8}  In Powell

v. Pennsylvania, 127 U.S. 678 (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 (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.  Again,

in Omnia Commercial Co. v. United States, 261 U.S. 502 (1923), the Court

stated that "destruction of, or injury to, property is frequently

accomplished without a 'taking' in the constitutional sense."  Id. at

508.



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 [505 U.S. 1049] U.S. at 596. 

"Although a comparison of values before and after is relevant," the

Court stated, "it is by no means conclusive."{9}  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.{10}  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."{11}  480 U.S.

at 489, n. 18. [505 U.S. 1050]



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 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 turned on the

availability of some residual valuable use.{12}  Instead, the cases

depended on whether the [505 U.S. 1051] government interest was

sufficient to prohibit the activity, given the significant private

cost.{13}



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.

[S]ince 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 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.{14}  See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

418, 43 S.Ct. 158, 161 (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"). [505 U.S. 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."{15}  Ante at 1031.



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.{16}  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

[505 U.S. 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, 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.{17}



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 at 1024. 

Since the characterization will depend "primarily upon one's evaluation

of the worth of competing uses of real estate," ante 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 at 1026.  The Court, however, fails to explain how its proposed

common law alternative escapes the same trap. [505 U.S. 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 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. .

. .{18} Michelman, Takings, 1987, 88 Colum.L.Rev. 1600, 1614 (1988).



The Court's decision in Keystone Bituminous Coal illustrates this

principle perfectly.  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 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 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 [505

U.S. 1055] law is simply a determination whether a particular use causes

harm.  See Prosser, Private Action for Public Nuisance, 52 Va.L.Rev.

997, 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."{19}  Once

one abandons the level of generality of sic utere tuo ut alienum non

laedas, ante at 1031, one searches in vain, I think, for anything

resembling a principle in the common law of nuisance. 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 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 at 1028.  It is not clear from the Court's

[505 U.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 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 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).{20}



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.{21}  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 [505

U.S. 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, 3 Hill 100, 103 (S.C.1836)).{22}



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.{23}  See ante at 1014.  Most state courts agreed with

this narrow interpretation of a taking.  "Until the end of the

nineteenth century . . . , jurists held that [505 U.S. 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 Bosselman 106; Callender

v. Marsh, 1 Pick. 418, 430 (Mass.1823).



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 right to injure or

endanger the public.{24}  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, 145-146, 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, 20 Cal.Rptr. 638, 370 P.2d

342, appeal dism'd, 371 U.S. 36 (1962); Nassr v. [505 U.S. 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).



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 1800s.  See

Horwitz 635.



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 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. [505 U.S. 1060] Tewksbury, 11 Metc. at

57.{25}  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 tidewater 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.) ("[T]he legislature may change the common law as

to nuisances, and may move the line either way, so as to make things

nuisances which were not so, or to make things lawful which were

nuisances").



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.{26} [505 U.S. 1061] V



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



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 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. County of Yolo, 477 U.S. 340, 351

(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 [505 U.S. 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.{1}  Thus, on

the present record, it is entirely possible that petitioner has suffered

no injury-in-fact even if the state statute was unconstitutional when he

filed this lawsuit.



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. Tennessee Valley Authority, 297 U.S. 288, 341

(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; [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 Id. 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 [505 U.S. 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 at 1026, and then sets itself to the task

of identifying the exceptional cases in which a State may be relieved of

this categorical obligation.  Ante at 1027-1029.  The test the Court

announces is that the regulation must do no more than duplicate the

result that could have been achieved under a State's nuisance law.  Ante

at 1029.  Under this test, the categorical rule will apply unless the

regulation merely makes explicit what was otherwise an implicit

limitation on the owner's property rights.



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 at 1015, Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922), provides no support for its -- or, indeed,

any -- categorical rule.  To the contrary, Justice Holmes recognized

that such absolute rules ill-fit the inquiry into "regulatory takings." 

Thus, in the paragraph that contains his famous observation that a

regulation may go "too far" and thereby constitute a taking, the Justice

wrote:  "As we already have said, this is a question of degree -- and

therefore cannot be disposed of by general propositions."  Id. at 416. 

What he had "already . . . said" made perfectly clear that Justice

Holmes regarded economic injury to be merely one factor to be weighed:

One fact for consideration in determining such limits is the extent of

the diminution [505 U.S. 1064] [of value.]  So the question depends upon

the particular facts. Id. at 413.



Nor does the Court's new categorical rule find support in decisions

following Mahon.  Although, in dicta, we have sometimes recited that a

law "effects a taking if [it] . . . denies an owner economically viable

use of his land," Agins v. Tiburon, 447 U.S. 255, 260 (1980), our

rulings have rejected such an absolute position.  We have frequently --

and recently -- held that, in some circumstances, a law that renders

property valueless may nonetheless not constitute a taking.  See, e.g.,

First English Evangelical Lutheran Church of Glendale v. County of

Los Angeles, 482 U.S. 304, 313 (1987); Goldblatt v. Hempstead, 369

U.S. 590, 596 (1962); United States v. Caltex, 344 U.S. 149, 155 (1952);

Miller v. Schoene, 276 U.S. 272 (1928); Hadacheck v. Sebastian, 239 U.S.

394, 405 (1915); Mugler v. Kansas, 123 U.S. 623, 657 (1887); cf.

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011 (1984);

Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211,

225 (1986).  In short, as we stated in Keystone Bituminous Coal

Assn. v. DeBenedictis, 480 U.S. 470, 490 (1987), "`Although a

comparison of values before and after' a regulatory action `is relevant,

. . . it is by no means conclusive.'"



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).{2}  Thus, if

the homes adjacent to Lucas' [505 U.S. 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.



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.{3}  Ante at 1026,

n. 13.



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 [505 U.S. 1066] allows only single-family homes would

render the investor's property interest "valueless."{4}  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.



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 at 1017. 

This argument proves too much.  From the "landowner's point of view," a

regulation that diminishes a lot's value by 50% is as well "the

equivalent" of the condemnation of half of the lot.  Yet it is well

established that a 50% diminution in value does not, by itself,

constitute a taking.  See Euclid v. Ambler Realty Co., 272 U.S. 365,

384 (1926) (75% diminution in value).  Thus, the landowner's

perception of the regulation cannot justify the Court's new rule.



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 at 1018.  This argument proves too little. 

Certainly it is true that defining a small class of regulations that are

per se takings will not [505 U.S. 1067] greatly hinder important

governmental functions -- but this is true of any small class of

regulations.  The Court's suggestion only begs the question of why

regulations of this particular class should always be found to effect

takings.



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 infra, Part

III, 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 without depriving him of all of his property, see e.g.,

Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (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 (1887); Hadacheck v. Sebastian,

239 U.S. 394 (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

compensated," ante at 1026, than it quickly establishes an exception

to that rule. [505 U.S. 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 at 1029-1030.  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.  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.  [T]he 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.



The Court's holding today effectively freezes the State's common law,

denying the legislature much of its traditional [505 U.S. 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 (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 (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 (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 (1979); the importance of wetlands, see, e.g., 16 U.S.C. 

3801 et seq.; and the vulnerability of coastal [505 U.S. 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.{5} *    *

   *    *



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.{6} [505 U.S. 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 inquir[y]."  Penn

Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978)

(quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962)).  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 (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 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 "prevent[ing] the public from loading upon one

individual more than his just share of the burdens of government." 

Monongahela Navigation Co. v. United [505 U.S. 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.{7}



For example, in the case of so-called "developmental exactions," we have

paid special attention to the risk that particular landowners might

"b[e] 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 (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 [505 U.S. 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 (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."{8} 

Consistent with this principle, physical occupations by third parties

are more likely to effect takings than other physical occupations. 

Thus, a regulation requiring the installation of a junction box owned by

a third party, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (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 (1979), is more troubling than an order requiring the placement

of safety buoys in the marina.



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 state-wide 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, 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, [505 U.S. 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  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.{9}  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,{10} and what is equally significant, from repairing

erosion control devices, such as seawalls, see S.C.Code  48-39-290(B)(2)

(Supp.1990).  In addition, in some situations, owners of developed land

were required to renouris[h] 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.{11}  In short, the South Carolina Act imposed substantial

burdens on owners of developed and undeveloped [505 U.S. 1075] land

alike.{12}  This generality indicates that the Act is not an effort

to expropriate owners of undeveloped land.



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 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 "protect[ing], preserv[ing], restor[ing] and enhanc[ing] the

beach/dune system" of the State not only for recreational and ecological

purposes, but also to "protec[t] life and property."  S.C.Code 

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.{13}



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 [505 U.S. 1076] Carolina Legislature

persuade me that the Act did not effect a taking of petitioner's

property.



Accordingly, I respectfully dissent. SOUTER, J., statement



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 (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, 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 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.  [505

U.S. 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 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 (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, [505 U.S. 1078] 239 U.S. 394, 412

(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 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 (1984) (Burger, C.J.); United States v.

Shannon, 342 U.S. 288, 294 (1952) (Frankfurter, J.). Footnotes SCALIA,

J., lead opinion (Footnotes)



1. 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 is influenced directly

by the inlet and its associated shoals," S.C.Code  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 the primary oceanfront sand dune."  

48-39-280(A)(1).



2. 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) (Supp.1988).



3. JUSTICE BLACKMUN insists that this aspect of Lucas' claim is "not

justiciable," post 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 (1985), to "submi[t] a plan

for development of [his] property" to the proper state authorities.  Id.

at 187.  See post 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 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' 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, 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 (1987).  JUSTICE BLACKMUN finds it "baffling," post

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 (1992)," we

denied standing.  He sees in that strong evidence to support his

repeated imputations that the Court "presses" to take this case, post at

1036, is "eager to decide" it, post at 1045, and is unwilling to

"be denied," post 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.



4. 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 (CA4 1991).



5. 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 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' 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.



6. 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."  Post

at 1050, n. 11.  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."  Post 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. New York Crime Victims Board, 502 U.S. 105, 115 (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.



7. 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, 397

N.Y.S.2d 914, 920, 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' beachfront lots without economic

value.



8. 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 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, [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."  Post 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 (1982) (interest in excluding strangers from one's

land).



9. 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.  See Oklahoma City v. Tuttle,

471 U.S. 808, 816 (1985).



10. 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 lo 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

wellbeing.



(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) . . . [D]evelopment 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  48-39-250

(Supp.1991).



11. 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  48-39-250(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 wellbeing."   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 at 1040.  He says "[n]othing 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.  4839-290(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).



12. 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-pre venting justification for its action.  See post at

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.



13. 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)



14. Drawing on our First Amendment jurisprudence, see, e.g.,

Employment Division, Department of Human Resources of Oregon v.

Smith, 494 U.S. 872, 878-879 (1990), JUSTICE STEVENS would "loo[k] to

the generality of a regulation of property" to determine whether

compensation is owing.  Post at 1072.  The Beachfront Management Act

is general, in his view, because it "regulates the use of the coastline

of the entire state."  Post 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' approach renders the Takings Clause little more than a

particularized restatement of the Equal Protection Clause.



15. After accusing us of "launch[ing] a missile to kill a mouse," post

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 (1897)which, as JUSTICE BLACKMUN

acknowledges, occasionally included outright physical appropriation of

land without compensation, see post 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 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.



16. 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 (1880); see United States v. Pacific Railroad, 120

U.S. 227, 238-239 (1887).



17. Of course, the State may elect to rescind its regulation, 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.



18. 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, see post 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. BLACKMUN, J., dissenting (Footnotes)



1. 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

Cal.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.



2. The setback line was determined by calculating the distance landward

from the crest of an ideal oceanfront sand dune which is forty times the

annual erosion rate.  S.C.Code  48-39-280 (Supp.1991).



3. 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.



4. The Court's reliance, ante at 1013, on Esposito v. South Carolina

Coastal Council, 939 F.2d 165, 168 (CA4 1991), cert. pending, No.

91-941, in support of its decision to consider Lucas' temporary taking

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.



5. Even more baffling, given its decision, just a few days ago, in

Lujan v. Defenders of Wildlife, 504 U.S. 555 (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. "[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. 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 at 1013, n. 3, quoting the Complaint, and

failed to demonstrate any immediate concrete plans to build or sell.



6. 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.



7. 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.  The Court chastises respondent for arguing that

Lucas' temporary taking claim is premature because it failed "so much as

[to] commen[t]" 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 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-taking claim in the state

courts.



8. 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 (1879). And the

Court recognized in The License Cases, 5 How. 504, 589 (1847) (opinion

of McLean, J.), that "[t]he acknowledged police power of a State extends

often to the destruction of property."



9. 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. 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, 20 Cal.Rptr. 638, 370 P.2d 342, appeal dism'd, 371 U.S. 36

(1962).



10. 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 (1990).



11. 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, ante

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 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.  Ante

at 1015-1016.  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.



12. Miller v. Schoene, 276 U.S. 272 (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

saleable, 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.



13. 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 taking 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.



14. 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.



15. 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 1800s, 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.F. 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.



16. 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. 623, 654

(1887); Hadacheck v. Los Angeles, 239 U.S. 394 (1915); Miller, 276 U.S.

at 272; Goldblatt v. Hempstead, 369 U.S. 590 (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).



17. 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 at 1022-1023.  Justice Holmes, the

author of Pennsylvania Coal, joined Miller v. Schoene, 276 U.S. 272

(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.



18. 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).



19. 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, at 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 (1981).



20. 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.



21. 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).



22. 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.



23. 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.



24. 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 [e]very 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).



25. More recent state court decisions agree.  See, e.g., Lane v. Mt.

Vernon, 38 N.Y.2d 344, 379 N.Y.S.2d 798, 800, 342 N.E.2d 571, 573

(1976); Commonwealth v. Baker, 160 Pa.Super. 640, 53 A.2d 829, 830

(1947).



26. 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 at 1028, n. 15.  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.  See supra, pp. 1047-1048, 1052-1053, and n. 16.  I

cannot imagine where the Court finds its "historical compact," if not in

history. STEVENS, J., dissenting (Footnotes)



1. 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.



2. This aspect of the Act was amended in 1990.  See S.C.Code 

48-39-290(B) (Supp.1990).



3. 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 at 1015 (emphasis added), of property is

relevant in takings analysis.  I should think that a regulation

arbitrarily prohibiting an owner from continuing to use her property for

birdwatching or sunbathing might constitute a taking under some

circumstances; and, conversely, that such uses are of value to the

owner.  Yet the Court offers no basis for its assumption that the only

uses of property cognizable under the Constitution are developmental

uses.



4. 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.  See ante at 1017, n. 7.



5. 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).



6. As the Court correctly notes, in regulatory takings, unlike physical

takings, courts have a choice of remedies.  See ante at 1030, n. 17. 

They may "invalidat[e the] excessive regulation" or they may "allo[w]

the regulation to stand and orde[r] the government to afford

compensation for the permanent taking."  First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 335 (1987)

(STEVENS, J., dissenting); see also id. at 319-21.  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.



7. 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 Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872, 879-880 (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 (1982)

(STEVENS, J., concurring in judgment). . . .  In Prince v.

Massachusetts, 321 U.S. 158 (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 (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

(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.



8. See Levmore, Takings, Torts, and Special Interests, 77 Va.L.Rev.

1333, 1352-1354 (1991).



9. See Zalkin, Shifting Sands and Shifting Doctrines:  The Supreme

Court's Changing Takings Doctrine and South Carolina's Coastal Zone

Statute, 79 Cal.L.Rev. 205, 216-217, nn. 46-47 (1991) (collecting

statutes).



10. This provision was amended in 1990.  See S.C.Code  48-39-290(B)

(Supp.1990).



11. This provision was amended in 1990; authority for renourishment was

shifted to local governments.  See S.C.Code  48-39-350(A) (Supp.1990).



12. 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 (1922), and more closely resembles the general zoning scheme in

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) than the specific

landmark designation in Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978).



13. Zalkin, 79 Cal.L.Rev. at 212-213.

