The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_453/91_453.zd2

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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 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 constitu-
tional question.  Proper respect for our precedents would
avoid an illogical expansion of the concept of -regulatory
takings.-
                            I
  As the Court notes, ante, at 5, 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 adjudica-
tion 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 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.  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 consti-
tutional law in advance of the necessity of deciding it.'
Liverpool, N.Y. & P.S.S. Co. v. Emigration Commission-
ers, 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 7.  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 21,
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 21-22.  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 24.  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 categori-
cal 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 9, 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 para-
graph that contains his famous observation that a regula-
tion 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 [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); Hadachek 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. DeBene-
dictis, 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 arbi-
trariness 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 -de-
stroyed 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).  Thus, if
the homes adjacent to Lucas' 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-not-
withstanding 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.  Ante, at 21, 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
multi-family home on a specific lot, with the result that a
zoning regulation that allows only single-family homes
would render the investor's property interest -valueless.-
In short, the categorical rule will likely have one of two
effects: Either courts will alter the definition of the -denom-
inator- 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 12.  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 12.  This
argument proves too little.  Certainly it is true that defining
a small class of regulations that are per se takings will not
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); Hadachek v. Sebastian, 329 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 theoreti-
cally 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 estab-
lished 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 21,
than it quickly establishes an exception to that rule.
  The exception provides that a regulation that renders
property valueless is not a taking if it prohibits uses of
property that were not -previously permissible under
relevant property and nuisance principles.-  Ante, at 24.
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 manufac-
ture of asbestos, cigarettes, or concealable firearms, for
example, it must be prepared to pay for the adverse
economic consequences of its decision.  One must wonder if
Government will be able to -go on- effectively if it must risk
compensation -for every such change in the general law.-
Mahon, 260 U. S., at 413.
  The Court's holding today effectively freezes the State's
common law, denying the legislature much of its traditional
power to revise the law governing the rights and uses of
property.  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 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.

                           ***
  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 mil-
lion-well demonstrates, these officials face both substan-
tial uncertainty because of the ad hoc nature of takings law
and unacceptable penalties if they guess incorrectly about
that law.
  Viewed more broadly, the Court's new rule and exception
conflict with the very character of our takings jurispru-
dence.  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 enter-
prise: -fairness and justice- are often disserved by categori-
cal 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
States, 148 U. S. 312, 325 (1893).  We have, therefore, in
our takings law frequently looked to the generality of a
regulation of property.
  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 regula-
tory function of the latter was substantially broader.
Unlike the Kohler 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.
Amber 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.-  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, 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 Beach-
front 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 Man-
agement 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.  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, 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.  In short, the
South Carolina Act imposed substantial burdens on owners
of developed and undeveloped land alike.  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 expecta-
tions 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 legisla-
ture 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.
  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 motivat-
ing the South Carolina Legislature persuade me that the
Act did not effect a taking of petitioner's property.
  Accordingly, I respectfully dissent.