Item B: Ordinance Concerning Goal 5 Natural Resources Study

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505 U.S. 1050 LUCAS v. SOUTH CAROtINA COASTAL COUNCIL Cite as 112 S.Ct. 2886 (1992) 2911 a 'taking' in the constitutional sense." Id., at 508, 43 S.Ct., at 437. More recently, in Goldblatt, the Court up- held a town regulation that barred continued operation of an existing sand and gravel op- eration in order to protect public safety. 369 .J1p49U.S., at 596, 82 S.Ct., at 991. "Although a comparison of values before and after is relevant," the Court stated, "it is by nO means conclusive." 9 Id., at 594,82 RCt., at 990. 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 pro- lubiting particular contemplated uses of land, this Court has upheld land-use regulation that destroyed ... recognized real property interests." Penn Central Tramp. Co., 438 U.S., at 125, 98 s.Ot., at 2659. In First English Evangelical Lutheran Church of Glendnle 11. County of Los Angeles, 482 U.S. 304, 107 s.Ot. 2378, 96. L.Ed.2d 250 (1987), the owner alleged that a floodplain ordinance had deprived it of "all use" of the property. Id., at 312, 107 S.Ot., at 2384. The Court 9. That same year, an appeal came to the Court asking "[w]hether zoning ordinances which alto- gether 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.t962, No. 307, p. 5. The Court dismissed the appeal for lack of a substantial federal question. Consoli- dated Rock Products Co. v. Los Angeles, 57 Cal.2d 515, 20 CaI.Rptr. 638, 370 P.2d 342, appeal dism'd, 371 U.S~ 36, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962). 10. On remand, the California court found no taking in part because the zoning regulation "in- volves this highest of public interests--the pre- vention of death and injury." First Lutheran Church v. Los Angeles, 210 CaI.App.3d 1353, 1370,258 Cal.Rptr. 893, 904 (1989), cert. denied, 493.U.S. 1056, 110 S.Ct. 866, 107 L.Ed.2d 950 (1990). 11; The Court's suggestion that Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct.2138, 65 L.Ed.2d 106 (1980), a unanimous opinion, creat- ed 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 neces- sarily requires a weighing of public and private interest." Id., at 260-262, 100 S.Ct., at 2141- 2142. The other cases cited by the Court, ante, remanded the case for consideration wheth- er, even if the ordinance denied the owner all use, it could be justified as a safety mea- sure.to Id., at 313, 107 S.Ct., at 2385. And in Keystone Bituminous Coal, the Court summarized over 100 years of .precedent: "[T]he Court has repeatedly upheld regula- tions that destroy or adversely affect real property interests." 11 480 U.S., at 489, n. 18, 107 S.Ct., at 1244, n. 18. .J.wsoThe Court recogniZes . that "our prior opinions have suggested that 'harmful or noxious uses' of property may be prosCribed by. government regulation without the re- quirement of compensation," ante, at 2897, but seeks to reconcile them with its categori- cal 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 un~ derstanding 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 at 2893, repeat the Agins sentence, but in no way s\!.ggest that the public interest is irrelevant if total value has been taken. The Court has indi- cated that proof that a regulation d,oes not deny an owner economic use of his property is suffi- cient to defeat a facial takings challenge. See Hotkl v_ Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 295-297, 101 S.Ct. 2352, 2370-2371, 69 L.Ed.2d 1 (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 cousideration. 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, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), for its new categorical rule. Ante, at 2893. I prefer to rely on the directly contrary holdings in cases such as Mugler v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915), and Hadacheck v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), not to mention con- trary statements in the very cases on which the Court relies. See Agins, 447 U.S., at 260-262. 100 S.Ct., at 2141-2142; Keystone. Bituminous Coal, 480 U.S., at 489, n. 18, 491-492, 107 S.Ct., at 1243-l244,n. 18, 1245~1246.