Item B: Ordinance Concerning Goal 5 Natural Resources Study

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505 U.s. 1062 LUCAS v. SOUTH CAROLINA COASTAL COUNCIL Cite as 11 Z S.Ct. Z886 (199Z) 2917 which were not so, or to make things lawful which were nuisances"). In short, I find no clear and accepted "historical compact" or "understanding of our citizens" justifying the Court'anew takings doctrine. Instead, the Court seems to treat history as a grab bag of principles, . to be adopted where they support the Court's the- ory, and ignored where they do not. If the Court decided that the early common law provides the background principles for inter- preting the Takings Clause, then regulation, as opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period provides the back- ground principles, then regulation might be compensable, but the Court would have to confront the fact that legislatures regularly determined which uses were prohibited, inde- pendent of the common law, and independent of whether the uses were lawful when the owner purchased. What. makes the Court's analysis unworkable is its attempt to package the law of two incompatible eras and peddle it as historical fact. 26 Justice STEVENS, dissenting. Today the Court restricts one judge-made rule and expands another. In my opinion it errs on both counts. Proper application. of the doctrine of judicial restraint would avoid the premature adjudication of an important constitutional question. Proper respect for our precedents would avoid an illogical ex- pansion of the concept of "regulatory tak- ings." I As the Court notes, ante, at 2890-2891, South Carolina's Beachfront Management Act has been amended to permit some con- struction of residences seaward of the line that frustrated petitioner's. proposed use of his property. Until he exhausts his right to apply for a special permit under that amend- ment, petitioner is not entitled to an adjudi- cation by this Court of the merits of his permanent takings claim. MacDonald, Som- mer & Fraies v. Yolo County, 477 U.S. 340. 351, 106 S.Ct. 2561; 2567; 91 L.Ed.2d 285 (1986). It is also not cl~ that he has a viable "temporary takings" claim. If we assume that petitioner is now able to build on the lot, .J.l96N The Court makes sweeping and, in my view, misguided and unsupported changes in our takings doctrine. While it liniits these the only injury that he may have suffered. is changes to the most narrow subset of gov- ...lJ..062the delay caused by the te~porary eXIS- ernment regulation-those that eliminate all tence .of the absolute statuto~ ban on con- economic value from land-these changes go struction. We cannot?: sure, however, that far beyond what is necessary to secure peti- that delay caused ,petitioner any h~ ~- tioner Lucas' private benefit. One hopes ~s~ the record does not tell us wh,:ther h18 they do not go beyond the narrow confines building plans were even temporarily froS; the Court assigns them to today. trated by the enactment of :h: sta~te. Thus, on the present I-ecoro It 18 entirely possible that petitioner 'has suffered no inju- I dissent. 2~; The Court asserts that all early American ex- perience. prior to and after passage of the Bill of Rights. and any case law prior to 1897 are "en- tirely irrelevant" in determining what is ..the historical compact recorded in the Takings Clause." Ante. at 2900 and n. 15. Nor appar- ently are we to find this compact in the early federal takings cases, which clearly permitted prohibition of harmful uses despite the alleged loss of all value. whether or not the prohibition was a common-law nuisance. and whether or not the prohibition occurred subsequent to the pur- chase. See supra. at 2910, 2912-2913. and n. 16. I cannot imagine where the Court finds its "historical compact," if not in history. 1. In this regard. it is noteworthy that ,petitioner acquired the lot about 18 months before the statute was passed; there is no evidence that he ever sought a building permit from the local authorities.