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<br />505 U.S. 1031
<br />
<br />LUCASv. SOUTH CAROLINA COASTAL COUNCn..
<br />Cite as 112 S.Ct. 2886 (J 992)
<br />
<br />2901
<br />
<br />not proscribe a productive use that was pre-
<br />viously permissibltlJpsounder relevant prop-
<br />erty and nuisance principles. The use of
<br />these properties for what are now expressly
<br />prohibited purposes was always unlawful,
<br />and (subject to other constitutional limita-
<br />tions) it was open to the State at any point to
<br />make the implication of those baekground
<br />principles of nuisance and property law ex-
<br />plicit. See Michelman, Property, Utility, and
<br />Fairness, Comments on the Ethical Founda-
<br />tions of "Just Compensation" Law, 80 Harv.
<br />L.Rev. 1165, 1239-1241 (1967). In light of
<br />our traditional resort to "existing rules or
<br />understandings that stem from an indepen-
<br />dent source such as state law" to define the
<br />range of interests that. qualify for protection
<br />as "property" under the Fifth and Four-
<br />teenth Amendments, Board of Regents of
<br />State CoUeges v. Roth, 408 U.S. 564, 577, 92
<br />S.Ct. 2701, 2709, 33 L.Ed.2d 548 (l!rl2); see,
<br />e.g., Ruckelshaus v. Monsanto Co., 467 U.S.
<br />986,. 1011-1012, 104 S.Ct. 2862, 2877, 81
<br />L.Ed.2d 815 (1984); Hughes v. Washington,
<br />389 U.S. 290, 295, 88 S.Ct. 438, 441, 19
<br />L.Ed.2d 530 (1967) (Stewart, J., concurring),
<br />this recognition that the Takings Clause does
<br />not require compensation when an owner is
<br />barred from putting land to a use that is
<br />proscribed by those "existing rules or under-
<br />standings" is surely unexceptional. When,
<br />however, a regulation that declares "off-lim-
<br />its" all economically productive or beneficial
<br />uses of land goes beyond what the relevant
<br />background principles would dictate, com-
<br />pensation must be paid to sustain it.17
<br />
<br />The "total taking" inquh-y we require to-
<br />day will ordinarily entail (as the application
<br />of state nuisance law ordinarily entails) anal-
<br />ysis of, among other things, the degree of
<br />harm to public lands and resources, or adja-
<br />cent private property,.JJ1!31Posed by the
<br />claimant's proposed activities, see, e.g., Re-
<br />
<br />17. Of course, the State may elect to rescind its
<br />regulation and thereby avoid having to pay com-
<br />pensation for a permanent deprivation. See
<br />First English Evangelical Lutheran Church. 482
<br />U.S., at 321, 107 S.Ct., at 2389. But "where the
<br />
<br />statement (Second) of Torts ~~ 826,827, the
<br />social value of the claimant's activities and
<br />their suitability to the locality in question,
<br />see, e.g., id., ~~ 828(a) and (b), 831, and the
<br />relative eaSe with which the alleged harm
<br />can be avoided through measures taken by
<br />the claimant and the government (or adja-
<br />cent private landowners) alike, see, e.g., id.,
<br />~s 827(e), 828(c), 830. The fact that a par-
<br />ticular use has long been engaged in by simi-
<br />larly situated owners ordinarily imports a
<br />lack of any common-law prohibition (though
<br />changed circumstances or new knowledge
<br />may make what was previously perinissible
<br />no longer so, see id., ~ 827, Comment g. So
<br />also does the fact that other landowners,
<br />similarly situated, are permitted to continue
<br />the use denied to the chiimant.
<br />
<br />It seems unlikely that common-law princi-
<br />ples would have prevented the erection of
<br />any habitable or productive improvements on
<br />petitioner's land; they rarely support prohi-
<br />bition of the "essential use" of land, Curtin v.
<br />Benson, 222 U.S. 78, 86, 32 S.Ct. 31, 33, 56
<br />L.Ed. 102 (1911). The question, however, is
<br />one of state law to be dealt with on remand.
<br />We emphasize th~t to win its case South
<br />Carolina must do more than llroffer the legis-
<br />lature's declaration that the uses Lucas de-
<br />sires are inconsistent with the public interest,
<br />or the conclusory assertion .that they violate
<br />a common-law maxim such as sic utere hw ut
<br />alienum non laedas.. As we have said, a
<br />:'State, by ipse dixit, may not tr~sform pri-
<br />vate property into public property without
<br />compensation...... Webb's Fabulous Phar-
<br />macies, Inc. v. Beckwith, 449 U.S. 155, 164,
<br />101 S.Ct. 446, 452, 66 L.Ed.2d 358 (1980).
<br />Instead, as it would be required to do if it
<br />sought to restrain Lucas in a common-law
<br />action for public nuisance, South Carolina
<br />must identify background principles of nui-
<br />sance and property law that prohIbit the uses
<br />
<br />[regulation has] already worked a taking of all
<br />use of property, no subsequent action by the
<br />government can relieve it of the duty to provide
<br />compensation for the period during which the
<br />taking was effective." Ibid.
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