Item B: Ordinance Concerning Goal 5 Natural Resources Study

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LUCAS v. SOUTH CAROLINA COASTAL COUNCIL Cite as 112 S.CL 2886 (1992) absolute position. We have frequently-and yond repair by natural causes or by fire." recently-held that, in some circumstances, a 1988 S.C. Acts 634, * 3; see also Esposito v. law that renders property valueless may South Carolina Coastal Counci~ 939 F.2d nonetheless not constitute a taking. See, 165, 167 (CA4 1991).2 Thus, if the homes e.g., First English Evangelical Lutheran adjacent to Lucas~lot were destroyed by Church of Glendale v. County of Los Ange- a hurricane one day after the Act took effect, les, 482 U.S. 304, 313, 107 S.Ct. 2378, 2385, 96 the owners w~uld not be able to rebuild, nor L.Ed.2d 250 (1987); Goldblatt v. Hempstead, would they be assured recovery. Under the 369 U.S. 590, 596, 82 S.Ct. 987, 991,. 8 Court's categorical approach, Lucas (who has L.Ed.2d 130 (1962); United States v. Caltex, lost the opportunity to bUild) recovers, while 344 U.S. 149, 155,73 S.Ct. 200, 203, 97 L.Ed. his neighbors (who have lost both the oppor- 157 (1952); Miller v. Schoene, 276 U.S. 272, tunity to build and their homes) do not re- 48 S.Ct. 246, 72 L.Ed. 568 (1928); Hadacheck cover.' The arbitrariness of such a rule is v. Sebastian, 239 U.S. 394, 405, 36 S.Ct. 143, palpable. 143, 60 L.Ed. 348 (1915); Mugle1' v. Kansas, 123 U.S. 623, 657, 8 S.Ct. 273, 294, 31 L.Ed. 205 (1887); cf. Rucke18haus v. Monsanto Co., 467 U.S. 986, 1011, 104 S.Ct. 2862, 2877, 81 L.Ed.2d 815 (1984); Connolly v. PenSion Benefit Guaranty Corporation, 475 U.S. 211, 225, 106 B.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986). In short, as we stated in .Keystone Bituminous Coal As8n. v. DeBenedictis, 480 U.S. 470, 490, 107 S.Ct. 1232, 1244, 94 L.Ed.2d 472 (1987), "'Although a comparison of values before and after' a regulatory ac- tion fis relevant, ... it is by rio means conclu- sive.' " 505 U.S. 1066 In addition to lacking support in past deci- sions, the Court's new rule is wholly arbi- trary. A landown~r whose property is di- minished in value 95% recovers nothing, while an owner whose property is diminished 100% recovers the land's full value. The case at hand illustrates this arbitrariness well. The Beachfront Management Act not only prolubited the building of new dwellings in certain areas, it also prohibited the re- building of houses that were "destroyed be- 2. This aspect of the Act was amended in 1990. See S.C. Code Ann. ~ 48-39-290(B) (Supp.1990). 3. Of course, the same could easily be said in this case: Lucas may put his land to "other uses"- fishing or camping, for example-or may sell his land to his neighbors as a buffer. In either event, his land is far from "valueless." This highlights a fundamental weakness in the Court's analysis: its failure to explain why only the impairment of "economically beneficial or 2919 Moreover, because of the elastic nature of property rights, the Court's new rule will also prove unsound in practice. In response to the rule, courts may define "property" broadly and only rarely find regulations to effect total takings. This is the approach the Court itself adopts in its revisionist reading of venerable precedents. We are told that-- notwithstanding the Court's findings to the contrary in each case-the brewery in Mu- gZer, the brickyard in H adacheck, and the gravel pit in Goldblatt all could be put to "other uses" and that, therefore, those cases did not involve total regulatory takings.3 Ante, at 2899, n. 13. On the other hand, developers and inves- tors may market specialized (!States to take advantage of the Court's new rule. The smaller the estate, the more likely that a regulatory change will effect a total taking. Thus, an investor. may, for example, purchase the right to build a multifamily home on a specific lot, with the result that a zoning regulation that ..J.lp66allows only single- productive use:' ante, at 2893 (emphasis added), of property is relevant in takings analysis. I should think that a regulation arbitrarily prohib- iting an owner from continuing to use her prop- erty for bird watching or sunbathing might con- stitute a taking under some circumstances; and. conversely. that such uses are of value to the owner. Yet the Court offers no basis for its assumption that the only uses of property cogni- zable under the Constitution are developmental uses.