Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2902 112 SUPREME COURT REPORTER 505 U.s. 1031 he now intends in the circumstances in which the property is presently found. Only on this showing ca~the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing.IS * ... '" The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion. So orcleTed. Justice KENNEDY, concurring in the judgment. The case comes to the Court in an unusual posture, as all my colleagues observe. Ante, at 2890; post, at 2906 (BLACKMUN, J., dissenting); post, at 2917 (STEVENS, J., dissenting); post, at 2925 (statement of SOUTER, J.). After ilie 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. ~ 48-39-29O(D)(1). (Supp. 1991). Petitioner has not applied for a spe- cial permit but may still do so. The avail- ability of tlrls alternative, if it can be invoked, may dispose of petitioner's claim of a perma- nent taking. As I read the Court's opinion, it does not decide the permanent taking claim, but neither does it foreclose the Su- preme Court of South Carolina from consid- ering the claim or requiring petitioner to pursue an administrative alternative not pre- viously available. The potential for future relief does not control our disposition, because whatever may occur in the future cannot undili033what has occurred in the past. The Beachfront Management Act was enacted in 1988. 18. Justice 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 preven- tion"('benefit conferral" dichotomy, see post, at 2914. There is no doub~ some leeway in a coun's interpretation of what existing state law permits-but not remotely as much, we think, as 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 'lJ. County of Los Angeles, 482 U.S. 304, 318, 107 S.Ct.2378, 2387, 96 L.Ed.2d 250 (1987). The issues presented in the case are ready for our decision. 1'he Supreme Court of South Carolina decided the case on constitu- tional 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. Tbe 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 Manage- ment Act. If the Takings Clause is to pro- tect against temporary deprivations, as well as pennanent 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 ulti- mate question whether a temporary taking has occurred in this case. The facts neces- sary to the determination have not been de- veloped 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 prevent- ed him. Any failure by petitioner to comply in a legislative crafting of the reasons for its confiscatory regulation. We stress that an affir- mative decree eliminating all economically bene- ficial uses may be defended only if an objectively reasonable application of relevant precedents would exclude those beneficial uses in the cir- cumstances in which the land is presently found.