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<br />2898
<br />
<br />112 SUPREME COURT REPORTER
<br />
<br />505 U.s. 1024
<br />
<br />example, to describe in either fashion the
<br />ecological, economic, and esthetic concerns
<br />that inspired the South Carolina Legislature
<br />in the present case. One coUld say that
<br />imposing a servitude on Lucas's land is nec-
<br />essary in order to prevent his use of it from
<br />"harming" .South Carolina's ecological re-
<br />sources; or, instead, in order to achieve the
<br />"benefits" of an ecological preserve.ll Com-
<br />pare, e.g., Claridge v. New Hampshire
<br />...i.Jg2sWetlands Board, 125 N.H. 745, 752, 485
<br />A2d 287, 292 (1984) (owner may,. without
<br />compensation, be barred from filling wet-
<br />lands because landfilIing would deprive adja-
<br />cent coastal habitats and marine fisheries of
<br />ecological support), with, e.g., Bartlett v. Zon-
<br />ing Comm'n of Old Lyme, 161 (;Qnn. 24, 30,
<br />282 A2d 907, 910 (1971) (owner barred from
<br />filling tidal marshland must be compensated,
<br />despite municipality's "laudable" goal of
<br />"preserv(ing) marshlands fr9m encroachment
<br />or destruction"). Whether one or the other
<br />of the competing characterizations will come
<br />to one's lips in a particular case depends
<br />primarily upon one's evaluation of the worth
<br />of competing uses of real ~state. See Re-
<br />statement (Second) of Torts ~ 822, Comment
<br />
<br />11. In the present case, in fact, some of the
<br />"[South Carolina] legislature's 'findings'" to
<br />which the South Carolina Supreme Court pur-
<br />ported to defer in characterizing the purpose of
<br />the Act as "harm-preventing," 304 S.C. 376, 385,
<br />404 S.E.2d 895, 900 (1991), seem to us phrased
<br />in "benefit-conferring" language instead. For
<br />example, they describe the importance of a con-
<br />struction ban' in enhancing "South Carolina's
<br />annual tourism industry revenue," S.C. Code
<br />Ann. ~ 48-39-250(1)(b) (Supp.l99I), in "pro-
<br />vid[ing) habitat for numerous species. of plants
<br />and animals, several of which are threatened or
<br />endangered," ~ 48-39-250(1)(c), and in "pro-
<br />vid[ing] a natural healthy environment for the
<br />citizens of South Carolina to spend leisure time
<br />which serves their physical and mental well-
<br />being," ~ 48-39-250(1 )(d). It would be pointless
<br />to make the outcome of this case hang upon this
<br />terminology, since the same interests could
<br />readily be described in "harm-preventing" fash-
<br />ion.
<br />
<br />Justice BLACKMUN, however, apparently in-
<br />sists that we must make the outcome hinge (ex-
<br />clusively) upon the South Carolina Legishiture's
<br />other, "harm-preventing" characterizations, fo-
<br />cusing on the declaration that "prohibitions on
<br />
<br />g, p. 112 (1979) ("Practically all human activi-
<br />ties unless carried on in a wilderness inter-
<br />fere to some extent with others or involve
<br />some risk of interference"). A given re-
<br />straint will be seen as mitigating "harm" to
<br />the adjacent parcels or securing a "benefit"
<br />for them, depending upon the observer's
<br />evaluation of the relative importance of the
<br />use that the restraint favors. See Sax, Tak-
<br />ings and the Police Power, 74 Yale L.J. 36,
<br />49 (1964) ("[T)he problem [in this area) is not
<br />one of noxiousness or harm-creating activity
<br />at all; rather it is a problem of inconsistency
<br />between perfectly innocent and independent-
<br />ly desirable uses"): Whether Lucas's con-
<br />stroction of single-family residences on his
<br />parcels should be described as bringing
<br />"harm" to South Carolina's adjacent ecologi-
<br />cal resources thus depends principally upon
<br />whether the describer believes that the
<br />State's use interest in nurturing those re-
<br />sources is so important that any competing
<br />adjacent use must yield.lZ
<br />
<br />..lJgz&When it is understood that ''prevention
<br />of harmful use" was merely our early formu-
<br />lation of the police power justification neces-
<br />sary. to sustain (with?ut compensation) any
<br />
<br />building in front of the setback line are necessary
<br />to protect people and property from storms, high
<br />tides, and beach erosion:' Post, at 2906. He
<br />says "[n]othing in the record undermines [this]
<br />assessment," ibid., apparently seeing no signifi-
<br />cance in the fact that the statute permits owners
<br />of. existing structures to remain (and even to
<br />rebuild if their structures are not "destroyed
<br />beyond repair," S.C. Code Ann. ~ 48-39-290(B)
<br />(Supp.1988)), and in the fact that the 1990
<br />amendment authorizes the Council to issue per-
<br />mits for new construction in violation of the
<br />uniform prohibition, see S.C. 'Code Ann. ~ 48-
<br />39-290(D){l) (Supp.1991).
<br />
<br />12. In Justice BLACKMUN's view, even with re-
<br />spect to regulations that deprive an owner of all
<br />developmental or economically beneficial land
<br />uses, the test for required compensation is
<br />whether the legislature has recited a harm-pre-
<br />venting justification for its action. See post, at
<br />2906,2910-2912. Since such a justification can
<br />be formulated in practically every case, this
<br />amounts to a test of whether the legislature has a
<br />stupid staff. We think the Takings Clause re-
<br />quires courts to do more than insist upon artful
<br />harm-preventing characterizations.
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