OCTOBER TERM, 1991
Syllabus
LUCAS
v. SOUTH CAROLINA COASTAL COUNCIL
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 91-453.
Argued March 2, 1992-Decided June 29, 1992
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's 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.
City of Tiburon, 447 U. S. 255, 261. The
state trial court agreed, finding that the ban rendered Lucas's
parcels "valueless," and entered an award exceeding $1.2 million.
In reversing, the State Supreme Court held itself bound, in light
of Lucas's 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's 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's pre amendment
deprivation. Lucas has properly alleged injury in fact with respect
to this pre amendment 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.
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 casespecific 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's 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 commonlaw 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, reversed and remanded.
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.
A. Camden Lewis argued the cause for petitioner. With him
on the briefs were
Gerald M. Finkel and
David
J. Bederman.
C. C.
Harness III argued the cause for respondent. With
him on the brief were
T. Travis Medlock, Attorney General of
South Carolina,
Kenneth P. Woodington, Senior Assistant
Attorney General, and
Richard J. Lazarus.
*
*Briefs of amici curiae urging reversal were filed for the
United States by Solicitor General Starr, Acting Assistant Attorney
General Hartman, Deputy Solicitor General Wallace, Deputy Assistant
Attorney General Clegg, Acting Deputy Assistant Attorney General
Cohen, Edwin S. Kneedler, Peter R. Steen land, James E. Brookshire,
John A. Bryson, and Martin W Matzen; for United States Senator
Steve Symms et al. by Peter D. Dickson, Howard E. Shapiro, and D.
Eric Hultman; for the American Farm Bureau Federation et al. by
James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John
J. Rademacher, and Richard L. Krause; for the American
Mining Congress et al. by George W Miller, Walter A. Smith, Jr.,
Stuart A. Sanderson, William E. Hynan, and Robert A. Kirshner; for
the Chamber of Commerce of the United States of America by Stephen
A. Bokat, Robin S. Conrad, Herbert L. Fenster, and Tami Lyn
Azorsky; for Defenders of Property Rights et al. by Nancy G.
Marzulla; for the Fire Island Association, Inc., by Bernard S.
Meyer; for the Institute for Justice by Richard A. Epstein, William
H. Mellor III, Clint Bolick, and Jonathan W Emord; for the Long
Beach Island Oceanfront Homeowners Association et al. by Theodore
J. Carlson; for the Mountain States Legal Foundation et al.
by William Perry Pendley; for the National Association of Home
Builders et al. by Michael M. Berger and William H. Ethier; for the
Nemours Foundation, Inc., by John
J. Mullenholz; for the
Northern Virginia Chapter of the National Association of Industrial
and Office Parks et al. by John Holland Foote and John F. Cahill;
for the Pacific Legal Foundation by Ronald A. Zumbrun, Edward
J. Connor, Jr., and R. S. Radford; and for the South
Carolina Policy Council Education Foundation et al. by G. Stephen
Parker.
Briefs of
amici curiae urging affirmance were filed for
the State of California by
Daniel E. Lungren, Attorney
General,
Roderick E. Walston,
1006
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,
Chief Assistant Attorney General,
Jan S.
Stevens,
Assistant Attorney General,
Richard M. Frank and
Craig C.
Thompson, Supervising Deputy Attorneys
General, and
Maria Dante Brown and
Virna L. Santos,
Deputy Attorneys General; for the State of Florida et al. by
Robert A. Butterworth, Attorney General of Florida, and
Lewis F.
Hubener, Assistant Attorney General,
James H. Evans, Attorney General of Alabama,
Richard
Blumenthal, Attorney General of Connecticut,
Charles M.
Oberly III, Attorney General of Delaware,
Michael
J. Bowers, Attorney General of Georgia,
Elizabeth
Barrett-Anderson, Attorney General of Guam,
Warren
Price, Attorney General of Hawaii,
Bonnie J.
Campbell, Attorney General of Iowa,
Michael E.
Carpenter, Attorney General of Maine,
J. Joseph
Curran, Jr., Attorney General of Maryland,
Scott
Harshbarger, Attorney General of Massachusetts,
Frank
J. Kelley, Attorney General of Michigan,
Hubert H.
Humphrey III, Attorney General of Minnesota,
Frankie Sue Del
Papa, Attorney General of Nevada,
Robert J.
Del Tufo, Attorney General of New Jersey,
John P.
Arnold, Attorney General of New Hampshire,
Tom Udall,
Attorney General of New Mexico,
Robert Abrams, Attorney
General of New York, and
Jerry Boone, Solicitor General,
Lacy H. Thornburg, Attorney General of North Carolina,
Charles S.
Crookham, Attorney General of Oregon,
Ernest D. Preate, Jr., Attorney General of Pennsylvania,
Jorges Perez-Diaz, Attorney General of Puerto Rico,
James
E. O'Neil, Attorney General of Rhode Island,
Paul Van
Dam, Attorney General of Utah,
Jeffrey L. Amestoy,
Attorney General of Vermont,
James E. Doyle, Attorney
General of Wisconsin,
Dan Morales, Attorney General of
Texas, and
Brian A. Goldman; for Broward County et al. by
John J. Copelan, Jr., Herbert W A. Thiele, and
H. Hamilton Rice, Jr.; for California Cities and Counties by
Robin D. Faisant, Gary T. Ragghianti, Manuela Albuquerque,
F.
Thomas Caporael, William Camil, Scott H. Howard, Roger
Picquet, Joseph Barron, David J. Erwin, Charles
J. Williams, John Calhoun, Robert K. Booth, Jr.,
Anthony S.
Alperin, Leland H. Jordan, John L. Cook, Jayne
Williams, Gary L. Gillig, Dave Larsen, Don G.
Kircher, Jean
Leonard Harris, Michael F.
Dean, John W Witt, C.
Alan
Sumption, Joan Gallo, George Rios, Daniel S.
Hentschke,
Joseph Lawrence, Peter Bulens, and
Thomas Haas; for
Nueces County, Texas, et al. by
Peter A. A. Berle, Glenn P.
Sugameli, Ann Powers, and
Zygmunt J. B.
Plater; for the American Planning Association et al. by
H.
Bissell Carey III and
Gary A. Owen; for Members of the
National Growth Management Leadership Project by
John A.
Humbach; for the Municipal Art Society of New York,
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 Ann. § 48-39-250
et
seq. (Supp. 1990), 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's 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's lots accomplished
a taking of private property under the Fifth and Fourteenth
Amendments requiring the payment of "just compensation." U. S.
Const., Arndt. 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 Ann. § 48-39-10
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,
Inc., by William E. Hegarty, Michael S. Gruen, Philip K. Howard,
Norman Marcus, and Philip Weinberg; for the National Trust for
Historic Preservation in the United States by Lloyd N. Cutler,
Louis R. Cohen, David R. Johnson, Peter B. Hutt II, Jerold S.
Kayden, David A. Doheny, and Elizabeth S. Merritt; for the Sierra
Club et al. by Lawrence N. Minch, Laurens H. Silver, and Charles M.
Chambers; and for the U. S. Conference of Mayors et al. by Richard
Ruda, Michael G. Dzialo, and Barbara Etkind.
Briefs of
amici curiae were filed for the National
Association of Realtors by
Ralph W Holmen; and for the
Washington Legal Foundation by
Daniel J. Popeo
and
Paul D. Kamenar.
1008
§48-39-10(J)) to obtain a permit from the newly created South
Carolina Coastal Council (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 singlefamily
residences. He commissioned architectural drawings for this
purpose.
The Beachfront Management Act brought Lucas's plans to an abrupt
end. Under that 1988 legislation, the Council was directed to
establish a "baseline" connecting the landwardmost "point[s] of
erosion ... during the past forty years" in the region of the Isle
of Palms that includes Lucas's lots. S. C. Code Ann. §
48-39-280(A)(2) (Supp. 1988).1 In action not challenged here, the
Council fixed this baseline landward of Lucas's parcels. That was
significant, for under the Act
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 are
directly influenced by the inlet and its associated shoals," S. C.
Code Ann. § 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 an ideal primary oceanfront sand dune." §48-39-280(A)(1).
1009
construction of occupable improvements 2 was flatly prohibited
seaward of a line drawn 20 feet landward of, and parallel to, the
baseline. § 48-39-290(A). 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's 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's 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's concession "that the
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).
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
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 Ann. §
48-39-290(D)(1) (Supp. 1991). According to the Council, this
amendment renders Lucas's 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.
Yolo County, 477 U. S. 340, 351
(1986). See also
Agins v.
City of 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 v.
Hamilton
Bank of Johnson City, 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's takings
claim on the merits. Cf.,
e. g., San Diego Gas &
Electric Co. v.
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's
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
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 discre-
3 JUSTICE BLACKMUN insists that this aspect of Lucas's 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's takings claim, it is appropriate for us
1013
tionary "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's 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. denied,
post, p. 1219.4 We
leave for decision on remand, of course, the questions left
unaddressed by the South
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 (1991).
1014
Carolina Supreme Court as a consequence of its categorical
disposition.5
III A
Prior to Justice Holmes's 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.
5JU8TICE 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's
case. We have no reason to believe that the justices of the South
Carolina Supreme Court are any more desirous of using a narrower
ground now than they were then; and neither "prudence" nor any
other principle of judicial restraint requires that we remand to
find out whether they have changed their mind.
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 S.
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 11/2
cubic feet of the landlords' property, see
id., at 438, 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
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, at 260 (citations omitted) (emphasis added).7
6We 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 takings challenge" and not for the point that
"denial
of such use is sufficient to establish a takings 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.
Members of N. Y.
State Crime Victims Ed., 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
longestablished 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
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
(dissenting opinion). "[F]or what is the land but the profits
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
analyze the situation as one in which the owner has been
deprived of all economically beneficial use of the burdened portion
of the tract, or as one in which the owner has suffered a mere
diminution in value of the tract as a whole. (For an extreme-and,
we think, unsupportable-view of the relevant calculus, see
Penn
Central Transportation Co. v.
New York City, 42 N. Y. 2d
324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977), aff'd,
438 U. S. 104 (1978),
where the state court examined the diminution in a particular
parcel's value produced by a municipal ordinance in light of total
value of the takings claimant's other holdings in the vicinity.)
Unsurprisingly, this uncertainty regarding the composition of the
denominator in our "deprivation" fraction has produced inconsistent
pronouncements by the Court. Compare
Pennsylvania Coal Co.
v.
Mahon, 260
U. S. 393, 414 (1922) (law restricting subsurface extraction of
coal held to effect a taking), with
Keystone Bituminous Coal
Assn. v.
DeBenedictis, 480 U. S. 470, 497-502
(1987) (nearly identical law held not to effect a taking); see also
id., at 515-520 (REHNQUIST, C. J., dissenting); Rose,
Mahon Reconstructed: Why the Takings Issue is Still a
Muddle, 57 S. Cal. L. Rev. 561,566-569 (1984). The answer to this
difficult question may lie in how the owner's reasonable
expectations have been shaped by the State's law of property-i.
e., whether and to what degree the State's law has accorded
legal recognition and protection to the particular interest in land
with respect to which the takings claimant alleges a diminution in
(or elimination of) value. In any event, we avoid this difficulty
in the present case, since the "interest in land" that Lucas has
pleaded (a fee simple interest) is an estate with a rich tradition
of protection at common law, and since the South Carolina Court of
Common Pleas found that the Beachfront Management Act left each of
Lucas's beachfront lots without economic value.
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. 1. 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, at 652 (dissenting opinion). The many
statutes on the books, both state and federal, that
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); §§ 3921-3923 (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. §§ 11-15-101 to 1115-108 (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
8JUSTICE 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
1020
B
The trial court found Lucas's two beachfront lots to have been
rendered valueless by respondent's enforcement of the coastal-zone
construction ban.9 Under Lucas's 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
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
"allor-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).
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,
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 to 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/
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
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 Ann. § 48-39-250 (Supp. 1991).
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
Comm'n, 483 U. S., at 834-835 ("Our cases have not elaborated
on the standards for determining what constitutes a 'legitimate
state interest[,J' [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
1024
"land-use regulation does not effect a taking if it
'substantially advance[s] legitimate state interests' .... "
Nollan, supra, at 834 (quoting
Agins v.
Tiburon, 447 U. S., at 260); see also
Penn Central
Transportation Co., supra, 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 "harmpreventing" 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. One could say that
imposing a servitude on Lucas's 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 preserveY Compare,
e. g., Claridge v.
New
Hampshire
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 "benefitconferring" language instead.
For example, they describe the importance of a construction ban in
enhancing "South Carolina's annual tourism industry revenue," S. C.
Code Ann. § 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
well-being," § 48-39250(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
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
g, p. 112 (1979) ("Practically 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 the 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's construction of singlefamily
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
if their structures are not "destroyed beyond repair," S. C.
Code Ann. § 48-39-290(B) (Supp. 1988)), 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 Ann. § 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,
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)P
the test for required compensation is whether the legislature
has recited a harm-preventing justification for its action. See
post, at 1039, 1040-1041, 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).
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
ren-
14 Drawing on our First Amendment jurisprudence, see,
e. g.,
Employment Div., Dept. of Human Resources of Ore. 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'S approach
renders the Takings Clause little more than a particularized
restatement of the Equal Protection Clause.
1028
der 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
pre-existing limitation upon the land-
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.
1029
owner's 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
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 R. Co., 120 U. S. 227, 238-239
(1887).
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
constitutionallimitations) 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, 12391241 (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,
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.
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
id., §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 commonlaw 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
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 case is remanded for
proceedings not inconsistent with this opinion.
So ordered.
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 Ann. § 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
18JUSTICE 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.
1033
what has occurred in the past. The Beachfront Management Act was
enacted in 1988. S. C. Code Ann. § 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 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 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 mar-
1034
ket value or resale potential. This is a curious finding, and I
share the reservations of some of my colleagues about a finding
that a beachfront 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.
City of 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, investmentbacked 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.
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
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.
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
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 South
Carolina Coastal Council (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
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 Calif. 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.
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 (Mar. 1987). In
response, South Carolina enacted the Beachfront Management Act on
July 1, 1988. S. C. Code Ann. § 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 watermark to a setback
line established on the basis of "the best scientific and
historical data" available.2 S. C. Code Ann. §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 or
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 halfway through the property.
Id., at 80. Between 1981 and 1983, the Isle of Palms issued
12 emergency orders for
2 The setback line was determined by calculating the distance
landward from the crest of an ideal oceanfront sand dune which is
40 times the annual erosion rate. S. C. Code Ann. § 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.
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 halfway 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." S. C. Code Ann. §
48-39-250(1)(a) (Supp. 1990). 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 §48-39-250(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 en-
1040
force it."
Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 491-492
(1987) (internal quotation marks 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,
Inc. v.
Hartford Fire Ins. Co., 282 U. S. 251, 257-258
(1931) (Brandeis, J.), and because its determination
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.
City of 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.
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 Ann. § 48-39280(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
4The Court's reliance,
ante, at 1013, on
Esposito
v.
South Carolina Coastal Council, 939
F.2d 165, 168
(CA4 1991), cert. denied,
post, p.
1219, in support of its decision to consider Lucas' temporary
takings 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 asapplied 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.
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. "[WJe 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 takings jurisprudence
based on the trial court's finding that the property
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.
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);
Turner v.
County of Del Norte, 24
Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972), cert. denied, 409 U. S.
1108 (1973);
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
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.
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: "[T]he 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.
Par-
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 takings claim. The Court chastises respondent for arguing
that Lucas' temporary takings 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 takings claim in the
state courts.
1046
ker, 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
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 takings 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
1048
u. S., at 668-669. 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
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 (1880). 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."
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 English Evangelical Lutheran Church of
Glendale v.
County of Los Angeles, 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: "[T]he Court has
repeatedly upheld regulations that destroy or adversely affect real
property interests." 11 480 U. S., at 489, n. 18.
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, 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
11 The Court's suggestion that
Agins v.
City of
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
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
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 takings 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 takings 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 Assn. 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 v.
Kansas, 123 U. S. 623 (1887), and
Hadacheck v.
Sebastian, 239 U. S. 394 (1915), 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 salable, 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
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 (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").
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 takings 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.
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 deter-
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 1800's 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. 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., at 654;
Hadacheck v.
Sebastian, 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).
1053
mine 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 harmP
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 'harmpreventing' 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.
17The 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.
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 valuefree
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 nui-
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).
1055
sance law is simply a determination whether a particular use
causes harm. See Prosser, Private Action for Public Nuisance, 52
Va. L. Rev. 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
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, p. 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).
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
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).
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
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, 915916 (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.
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
ibid.; 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, 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, 370 P. 2d
342, appeal dism'd,
371 U. S. 36 (1962);
Nassr v.
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. 1. 185
(1858).
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
1800's. See Horwitz 63-65.
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."
1060
Tewksbury, 11 Mete., 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 tide water is a nuisance at common law or not."
Alger, 7 Cush., at 104; see also
State v.
Paul, 5 R. 1. 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 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.26
25 More recent state-court decisions agree. See,
e.
g., Lane v.
Mt. Vernon, 38 N. Y. 2d 344,
348-349, 342 N. E. 2d 571, 573 (1976);
Commonwealth
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, and n. 15. Nor apparently are we to find this compact in the
early federal takings cases, which clearly permitted prohibition of
harmful uses despite the alleged loss of all value,
1061
v
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.
I dissent.
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.
Yolo County, 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
whether or not the prohibition was a common-law nuisance, and
whether or not the prohibition occurred subsequent to the purchase.
See
supra, at 1047-1048, 1052-1053, and n. 16. I cannot
imagine where the Court finds its "historical compact," if not in
history.
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.
TVA, 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
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.
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 diminu-
1064
tion [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.
City of Tiburon, 447 U. S. 255, 260
(1980), our
rulings have rejected such an absolute position.
We have frequentlyand 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'
2 This aspect of the Act was amended in 1990. See S. C. Code
Ann. § 48-39-290(B) (Supp. 1990).
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 casethe 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
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 bird watching 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.
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
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.
City of 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 10161017, n. 7.
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 Part III,
infra, 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.
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 statewide 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
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
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
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 of
Glendale v.
County of Los Angeles, 482 U. S. 304, 335 (1987)
(STEVENS, J., dissenting); see also
id., at 319-321. 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.
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., at 594).
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."
Prune Yard, 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
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
7This 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 Div., Dept. of
Human Resources of Ore. 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.
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.
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." 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 statewide policy. See,
e.
g., A. A. Profiles, Inc. v.
Ft. Lauderdale, 850 F. 2d
1483, 1488 (CA111988);
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, 596, 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,
8 See Levrnore, Takings, Torts, and Special Interests, 77 Va. L.
Rev. 1333, 1352-1354 (1991).
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 Ann. § 4839-10 (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 Ann. §
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
9 See Zalkin, Shifting Sands and Shifting Doctrines: The Supreme
Court's Changing Takings Doctrine and South Carolina's Coastal Zone
Statute, 79 Calif. L. Rev. 205, 216-217, nn. 46-47 (1991)
(collecting statutes).
10 This provision was amended in 1990. See S. C. Code Ann. §
48-39290(B) (Supp. 1990).
11 This provision was amended in 1990; authority for
renourishment was shifted to local governments. See S. C. Code Ann.
§ 48-39-350(A) (Supp. 1990).
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 Ann. § 4839-260(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
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.
Amber
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 Calif. L. Rev., at 212-213.
1076
Carolina Legislature persuade me that the Act did not effect a
taking of petitioner's property.
Accordingly, I respectfully dissent.
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 recog-
1077
nize. 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, 668669
(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,
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.).
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