Lucas v. South Carolina Coastal Council

Lucas v. South Carolina Coastal Council eText - Primary Source

Primary Source

Supreme Court decision

By: Antonin Scalia and Harry A. Blackmun

Date: June 29, 1992

Source: Scalia, Antonin and Harry A. Blackmun Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Available online at http://laws.findlaw.com/us/505/1003.html; website home page: http://laws.findlaw.com (accessed May 4, 2003).

About the Authors: Antonin Scalia (1936–) graduated from Harvard Law School in 1961. In 1986, President Ronald Reagan (served 1981–1989) nominated Scalia to the Supreme Court. On the Court, he has been an advocate of "textualism," or holding the Constitution to its literal meaning in the text. Harry A. Blackmun (1908–1999) was on the Eighth Circuit Court of Appeals from 1959 to 1970. President Richard Nixon (served 1969–1974) nominated Blackmun to the Supreme Court in 1970, and he remained there until 1994. Blackmun is most famous as the author of Roe v. Wade.

Introduction

The Bill of Rights was adopted to limit the federal government and to settle the apprehensions of many Anti-Federalists who worried that the federal government might become too powerful. The Fifth Amendment states, in part, that "nor shall private property be taken for public use without just compensation," frequently called the "takings" clause. For the first century of the Bill of Rights's existence, though, this limitation only applied against the federal government. Some constraints were imposed against the states in 1868 with the passage of the Fourteenth Amendment.

In the twentieth century, the Supreme Court began to apply constitutional protections from the Bill of Rights against the states. This served to limit what the states could do in restricting civil liberties, and also expanded a defendant's rights relating to criminal procedure. The takings clause, however, was not often used to limit action either by the state or federal government.

In the 1960s, concerns began to grow about the misuse of the environment. Rachel Carson's book, Silent Spring, documenting the effects of the deadly pesticide, DDT, led to a movement in the United States to ban that chemical's use in this country. Carson's book, along with other scientific information and a growing concern for the environment, launched the modern environmentalist movement. This led to events like Earth Day, which started in 1970. The federal government founded the Environmental Protection Agency (EPA) that same year; the EPA has served, in varying degrees, to protect the environment and to manage modern America's use of it. Nearly every state has established a state equivalent of the EPA.

Governmental agencies, influenced by the environmentalist movement, began to prevent some uses of land and reinforced the regulation of zoning codes to regulate how land was to be used. South Carolina prohibited the building of new homes on certain parts of the coast. David Lucas owned coastal property affected by this South Carolina restriction. Lucas sued, claiming that this constituted a "taking," and that he was owed compensation. The case reached the U.S. Supreme Court.

Significance

The Supreme Court, in a decision written by Justice Antonin Scalia, held for Lucas, reversing the South Carolina Supreme Court, and remanding the case. In order to restrict the usage without compensation under the takings clause, the state would need to demonstrate that Lucas's intended use constituted a public nuisance. This was a major restriction on the power of the government, as Lucas's land was not taken under eminent domain. Lucas retained ownership of the property, but was prohibited from building on the land to prevent further environmental damage. The dissenting opinion points out that the shifting coastline and unstable seashore was a factor in the government's decision to ban the use. This decision was a major setback for the environmentalist movement, since it means that any time a use is banned for the good of the environment—such as the building of homes in unstable areas—the property owner may be able to sue for compensation.

This decision also points out an interesting fact about Justice Scalia's textualism—the theory limiting the constitution to only what is textually specified. However, the Fifth Amendment (and state equivalents) does not prohibit a government from banning certain uses of the land, but only from taking private property to be used by the public, such as for a public road. Scalia is interpreting the Constitution here to add a limitation on government, something contrary to his own theory of textualism. The Lucas decision is a major impediment to government's efforts to prevent abuses of the land and protect the environment, and a major victory for property owners.

Primary Source: Lucas v. South Carolina Coastal Council [excerpt]

SYNOPSIS: Scalia defines a "taking" and notes that while the government can ban "noxious" uses of property, those uses cannot be banned without compensation unless they were not part of the title when the property was bought. Thus, the regulation here constitutes a taking. Blackmun bitingly dissents, arguing that the lower court's ruling, reversed here, was correct, and that the majority has retreated to the overly complex common law, and that the ruling is not supported by history.

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, South Carolina, on which he intended to build single-family homes. In 1988, however, the South Carolina Legislature enacted the Beachfront Management Act, … which had the direct effect of barring petitioner from erecting any permanent habitable structures on his two parcels.… A state trial court found that this prohibition rendered Lucas' parcels "valueless." … 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." …

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.… 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." …

We have never set forth the justification for this rule. Perhaps it is simply, … that total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation.… 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.… The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalent in this setting of negative regulation and appropriation.

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.…

It is correct that many of our prior opinions have suggested that "harmful or noxious uses" of property may be proscribed by government regulation without the requirement of compensation. For a number of reasons, however, we think the South Carolina Supreme Court was too quick to conclude that that principle decides the present case. The "harmful or noxious uses" principle was the Court's early attempt to describe in theoretical terms why government may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate—a reality we nowadays acknowledge explicitly with respect to the full scope of the State's police power.…

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 esthetic concerns that inspired the South Carolina Legislature in the present case.… 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.

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.…

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.…

The "total taking" inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, posed by the claimant's proposed activities, … the social value of the claimant's activities and their suitability to the locality in question, see, … 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 … 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 …) . 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 … 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.… Instead, as it would be required to do if it sought to restrain Lucas in a common law action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beach-front Management Act is taking nothing.…

The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

So ordered.

Justice Blackmun, H., dissenting.

Today the Court launches a missile to kill a mouse.…

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 the Court's missile, or save the targeted mouse, but because I hope perhaps to limit the collateral damage.…

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. The area is notoriously unstable. In roughly half of the last 40 years, all or part of petitioner's property was part of the beach or flooded twice daily by the ebb and flow of the tide.… 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.…

If the state legislature is correct that the prohibition on building in front of the setback line prevents serious harm, then, under this Court's prior cases, the Act is constitutional. Long ago it was recognized that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.… The Court consistently has upheld regulations imposed to arrest a significant threat to the common welfare, whatever their economic effect on the owner.…

Because that legislative determination cannot be disregarded in the absence of such evidence, … and because its determination 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.…

Clearly, the Court was eager to decide this case. But eagerness, in the absence of proper jurisdiction, must—and in this case should have been—met with restraint.…

The Court does not reject the South Carolina Supreme Court's decision simply on the basis of its disbelief and distrust of the legislature's findings. It also takes the opportunity to create a new scheme for regulations that eliminate all economic value. From now on, there is a categorical rule finding these regulations to be a taking unless the use they prohibit is a background common law nuisance or property principle.…

This Court repeatedly has recognized the ability of government, in certain circumstances, to regulate property without compensation, no matter how adverse the financial effect on the owner may be.…

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.… Instead the Court has relied in the past, as the South Carolina court has done here, on legislative judgments of what constitutes a harm.

The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without granting compensation because "the distinction between 'harm-preventing' and 'benefit-conferring' regulation is often in the eye of the beholder." … Since the characterization will depend "primarily upon one's evaluation of the worth of competing uses of real estate," … the Court decides a legislative judgment of this kind no longer can provide the desired "objective, value-free basis" for upholding a regulation.… The Court, however, fails to explain how its proposed common-law alternative escapes the same trap.

The threshold inquiry for imposition of the Court's new rule, "deprivation of all economically valuable use," itself cannot be determined objectively. As the Court admits, whether the owner has been deprived of all economic value of his property will depend on how "property" is defined.…

Even more perplexing, however, is the Court's reliance on common law principles of nuisance in its quest for a value-free takings jurisprudence. In determining what is a nuisance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common law public and private nuisance law is simply a determination whether a particular use causes harm.… There is nothing magical in the reasoning of judges long dead. They determined a harm in the same way as state judges and legislatures do today. If judges in the 18th and 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not legislators? There simply is no reason to believe that new interpretations of the hoary common law nuisance doctrine will be particularly "objective" or "valuefree." Once one abandons the level of generality of sic utere tuo ut alienum non laedas, … one searches in vain, I think, for anything resembling a principle in the common law of nuisance.

Finally, the Court justifies its new rule that the legislature may not deprive a property owner of the only economically valuable use of his land, even if the legislature finds it to be a harmful use, because such action is not part of the 'long recognized' "understandings of our citizens." … It is not clear from the Court's opinion where our "historical compact" or "citizens' understanding" comes from, but it does not appear to be history.…

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.…

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 … the Fifth Amendment's Takings Clause originally did not extend to regulations of property, whatever the effect.…

In short, I find no clear and accepted "historical compact" or "understanding of our citizens" justifying the Court's new takings 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 Takings 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.

The Court makes sweeping and, in my view, misguided and unsupported changes in our takings 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.

Further Resources

BOOKS

Bagley, Constance E., and Christy A. Haubegger. Cutting Edge Cases in the Legal Environment of Business. Minneapolis/St. Paul: West Pub. Co., 1993.

Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Echeverria, John D., and Raymond Booth Eby. Let the People Judge: Wise Use and the Private Property Rights Movement. Washington, D.C.: Island Press, 1995.

Garcia, Alfredo. The Fifth Amendment: a Comprehensive Approach. Westport, Conn.: Greenwood Press, 2002.

Levy, Leonard. Origins of the Bill of Rights. New Haven, Conn.: Yale University Press, 1999.

United States Senate Committee on the Judiciary. The Right to Own Property. Washington, D.C.: U.S. G.P.O. 1996.

PERIODICALS

"Symposium, the Jurisprudence of Justice Harry A. Blackmun." Hastings Constitutional Law Quarterly 26, no. 1, Fall 1998.

WEBSITES

A Photographic Essay on the Lucas Property.. Available online at http://www.dartmouth.edu/~wfischel/lucasessay.html; website home page: http://dartmouth.edu (accessed May 4, 2003).

AUDIO AND VISUAL MEDIA

The Debate: Resolved: Lucas Should be Overruled. Millersville, Md.: Recorded Resources Corp., 1997.