Item B: Ordinance Concerning Goal 5 Natural Resources Study

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505 U.S. 1054 LUCAS v. SOUTH CAROLINA COASTAL COUNCIL Cite as 112 S.Ct. 2886 (1992) 2913 turns on whether the prohibited activity is a common-law nuisance.11 The brewery closed in Mugler itself was not a common-law nui- sance, and the Court specifically stated that it was the rqle of the legislature to de- ~nel053 what measures would be appro- priate for the protection of public health and safety. See 123 U.S., at 661, 8 S.Ct.," at 297. In upholding the state action in Miller, the Court found it unnecessary to ''weigh with nicety the question whether the infected ce- dars constitute a nuisance according to com- mon law; or whether they may be so de- clared by statute." 276 U.S., at 280; 48 S.Ct., at 248. See also Goldblatt, 369 U.S., at 593, 82 S.Ct., at 989; Hadacheck, 239 U.S., at 411, 36 S.Ct., at 146. Instead the Court has relied "in the past, as the South Carolina court has done here, on legislative judgments of what constitutes a harm.17 The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without granting compensation be- cause ''the distiJiction between 'harm-pre- venting' and 'benefit-confeiTing' regulation is often in the eye of the beholder." Ante, at 2897. Since the characterization will depend "primarily upon one's evaluation of the worth of competing uses of real estate," ante, at 16. Also, until today the fact that the regulation prohibited uses that were lawful at the time the owner purchased did not determine the constitu- tional question. The brewery, the brickyard, the cedar trees, and the gravel pit were all perfectly legitimate uses prior to the passage of the regula- tion. See MugleT v. Kansas, 123 U.S., at 654," 8 S.Ct., at 293; Hadacheck v. Sebastian, 239 U.S. 394,36 S.Ct. 143,60 L.Ed. 348 (1915); Miller, 276 U.S., at 272, 48 S.Ct., at 246; Goldblatt v. Hempstead, 369 U.S." 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). This Court explicitly ac- knowledged in Hadacheck that "[a] vested inter- est cannot be asserted against [the police power] because of conditions once obtaining. To so hold would preclude development and fix a city forever in its primitive conditions." 239 U.S;, at 410,36 S.Ct., at 145 (citation omitted). 17. The Court argues thilt finding no taking when the legislature prohibits a harmful use, such as the Court did in Mugler and the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania Coal. See ante, at 2897. 2898; the Court decides a legislative judg- mentof this kind no longer can provide the desired "objective, value-free basis" for up- holding a regulation, ante, at 2899. The Court, however, fails to explain how its pro- posed common-law alternative escapes the same trap. .l1.054The threshold inquiry for imposition of the Court's new rule, "deprivation of all eco- nomically valuable use," itself cannot be de- termined objectively. " As the Court admits, whether the owner has been deprived of all economic value of his property will depend on how "property" is defined. The "composition of the denominator in our 'deprivation' frac- tion," ante, at "2894, n. 7, is the dispositive inquiry. Yet there is no "objective" way:to define what that denominator should "be. "We have long understood that any land-use regulation can be characterized as the 'total'. deprivation of an aptly defined entitle- ment. ... Alternatively, the slpne regulati.on can always be characterized as a mere 'par- tial' withdrawal from full, unencumbered ownership of the landholding affected by the regulation. . . ." 18 Michelman, Takings, 1987, 88 Colum.L.Rev. 1600, 1614 (1988). The Court's decision in Keystone Bitumi- nous Coal illustrates this principle perfectly. Justice Holmes, the author of Pennsylvania Coal, joined Miller v. Schoene, 276 U.S. 272; 48 S.Ct. 246. 7'/. 1.Ed. 568 (1928), six years later. In Miller, the Court adopted the exact approach of the South Carolina court: It found the cedar trees harmful, "and their destruction not a taking, whether or not they were a nuisance. Justice Holmes apparently believed that such anap- proach did not repudiate his earlier opinion. Moreover," this Court already has been over this ground five years ago. and at that pQint rejected the assertion that Pennsylvania Coal was incon- sistent with Mugler; Hadacheck, Miller, or the others in the string of "noxious use" cases. recognizing instead tbat the nature of the State's action is critical in taki\1gs," imalysis. Keystone Bituminous Coal, 480 U.s., at 490, 107 'S.Ct., "at 1244." " 18. See also Michelman, Property, Utility, and Fairness, Comments on the Ethic"al Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1192-1193 (1967); Sax, Takings and the Police Power, 74 Yale 1.J. 36, 60 (1964).