Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2908 112 SUPREME COURT REPORTER 505 D.S. 1043 473 U.S., at 188, 105 S.Ct., at 3117 (claim not ripe because respondent did not seek vari- ances that would have. allowed it to develop the property, notwithstanding the commis- sion'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 jurispru- dence based on the trial court's finding that the propert~4had 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 oth- ers, "one of the most essential sticks in the bundle of rights that are commonly charac- terized as property." Kaiser Aetna 'l.I. Unit- ed States, 444 U.S. 164, 176, 100 S.8t. 383, 391, 62 L.Ed.2d 332 (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 eco- nomic value where the only residual econom- ic uses are recreation or camping. See, e.g., Turnpike Realty Co. 'l.I. Dedham. 362 . Mass. . 221, 284 N.E.2d 891 (1972) cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973); Turner v. County of Del NoTte, 24 Cal.App.3d 311, 101 Cal.Rptr. 93 (1972); Hall 'l.I. Board of Environmental Protection, 528 final decision on the Act's application to the property in question. 5. Even more baffling, given its decision. just a few days ago, in Lujan v. Defenders of Wildlife. 504 U.S. 555. 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Court decides petitioner has demon- . strated injury in fact. In his complaint, petition- er 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 appreci- ating 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 con- crete plans, or indeed even any specification of when the some day will be--do not support a A2d 453 (Me.1987). Petitioner also retains the right to alienate the land, which would have value for neighbors and for those pre- pared to enjoy proximity to the ocean with- out 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 with- out a home, and petitioner's appraiser testi- fied 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 ... [isl luxury single family detached dwellings." Id., at 48. The trial court ap- peared to believe that the property could be considered ''valueless'' if it was not available for its most profitable use. Absent that erro- neous assumption, see Goldblatt, 369 U.S., at 592, B2 S.Ct., at 989, I fmd no evidence in the record supporting the trial court's conclusion that the. damage to the lots by virtue of the restrictions ..JJg4swas "total." Record 128 (findings of fact). I agree with the Court, ante, at 2896, n. 9, that it has the power to decide Ii case that turns on an erroneous finding, but I question the wisdom of decid- ing an issue based on a factual premise that does not exist in this case, and in the judg- ment of the Court will exist in the future only in "extraordinary circumstance[sl," ante, at 2894. finding of the 'actual or imminent' injury that our cases require." 504 U.S., at 564, 112 S.Ct., at 2138. The Court circumvents Defenders of Wildlife by deciding to resolve this case as if it arrived on the pl~dings 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 2892, n. 3, quoting the complaint, and failed to demon- strate any immediate concrete plans to build or sell. 6. Respondent contested the findings of fact of the trial court in the South Carolina Supreme C@urt, 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.