The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_453/91_453.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-453
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DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA
COASTAL COUNCIL
on writ of certiorari to the supreme court of south
carolina
[June 29, 1992]

  Justice Kennedy, concurring in the judgment.
  The case comes to the Court in an unusual posture, as all
my colleagues observe.  Ante, at 5; post, at 6 (Blackmun, J.,
dissenting); post, at 2 (Stevens, J., dissenting); post, at 1-2
(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 limita-
tions.  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 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.
48-39-290(A).  If this deprivation amounts to a taking, its
limited duration will not bar constitutional relief.  It is well
established that temporary takings are as protected by the
Constitution as are permanent ones.  First English Evangel-
ical 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 disposi-
tion, 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 amend-
ment 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, more-
over, 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 require-
ments 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 signifi-
cant market value or resale potential.  This is a curious
finding, and I share the reservations of some of my col-
leagues about a finding that a beach front lot loses all value
because of a development restriction.  Post, at 9-10
(Blackmun, J., dissenting); post, at 5, n. 3 (Stevens, J.,
dissenting); post, at 1 (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 Transporta-
tion 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 expecta-
tions are shaped by what courts allow as a proper exercise
of governmental authority, property tends to become what
courts say it is.  Some circularity must be tolerated in these
matters, however, as it is in other spheres.  E.g., Katz v.
United States, 389 U. S. 347 (1967) (Fourth Amendment
protections defined by reasonable expectations of privacy).
The definition, moreover, is not circular in its entirety.  The
expectations protected by the Constitution are based on
objective rules and customs that can be understood as
reasonable by all parties involved.
  In my view, reasonable expectations must be understood
in light of the whole of our legal tradition.  The common
law of nuisance is too narrow a confine for the exercise of
regulatory power in a complex and interdependent society.
Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962).  The
State should not be prevented from enacting new regulatory
initiatives in response to changing conditions, and courts
must consider all reasonable expectations whatever their
source.  The Takings Clause does not require a static body
of state property law; it protects private expectations to
ensure private investment.  I agree with the Court that
nuisance prevention accords with the most common
expectations of property owners who face regulation, but I
do not believe this can be the sole source of state authority
to impose severe restrictions.  Coastal property may present
such unique concerns for a fragile land system that the
State can go further in regulating its development and use
than the common law of nuisance might otherwise permit.
  The Supreme Court of South Carolina erred, in my view,
by reciting the general purposes for which the state regula-
tions 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 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.