Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2920 112 SUPREME COURT REPORTER 505 U.S. 1066 family homes would render. the investor's property interest "valueless." 4 In short, the categorical rule will likely have one of two effects: Either courts will alter the definition of the "denominator" in the takings "frac- tion," rendering the Court's categorical rule meaningless. or investors will manipulate the relevant property interests,' giving the Court's rule sweeping effect. To my mind, neither of these results is desirable or appro- priate, and both are distortions of our tak- ingS jurisprudence. Finally, the Court's justification for its new categorical rule is remarkably thin. The Court mentions in passing three arguments in support of its rule; none is convincing. First, the Court suggests that "total depriva- tion of feasible use is, from the landowner's point of view, the equivalent of a physical appropriation:' Ante, at. 2894. This argu- ment proves too much. From the "landown- er's point of view," a regulation that dimin- ishes . a lot's value by 50% is as well "the equivalent" of the condemnation of half of the lot. Yet, it is well established. that a 50% diminution in value does not by. itself consti- tute a taking~ See Euclid 'lJ. Amblerkealty Co., 272 U.S. 365. 384, 47 S.Ct. 114, 117, 71 L.Ed. 303 (1926) (75% diminution in value). Thus, the landowner's perception of the regu- lation cannot justify the Court's new rule. Second, the Court emphasizes that because total takings are ''relatively rare" its new rule will not adversely affect the govern- ment's ability to "go on." Ante, at 2894. This argument proves too little. Certainly it is true that defining a small class of regula- tions that are per 8e takings. will not ...1!.067greatly hinder important governmental functions-but this is true of any small class of regulations. The Court's suggestion only begs the question of why regulations of this particular class should always be found to effect takings. 4. This unfortunate possibility is created by the Court's subtle revision of the "total regulatory takings" dicta. In past decisions, we have stated that a regulation effects a taking if it "denies an owner economically viable use of his land," Agins v. City of Tiburon, 447 U.S. 255, 260, 100 Finally, the Court suggests that "regula- tions that leave the owner ... without eco- nomically beneficial ... use ... carry with them a heightened risk that private property is being pressed into some form of public service." Ibid. As discussed more fully be- low, see Part III, infra, I agree that the risks of such singling out are of central concern in takings law. However, such risks do not justify a per se rule for total regulatory takings. There is no necessary correlation between "singling out" and total takings: . A regulation may single out a property owner without depriving him of all of his property, see, e.g., NoUan 'lJ.. California Coastal Comm 1? 483 U.S. 825, 837, 107 S.Ct. 3141. 3149,97 L.Ed.2d 677 (1987); J.E.D. ~s8oci- ates, Inc. 'lJ. Atkinson, 121 N.H. 581, 432 A2d 12 (1981); and it may deprive him of all of his property without singling him out, see, e.g., Mugler 'lJ. Kansas, 123 U.S. 623. 8 S.Ct. 273, 31 L.Ed. 205 (1887); Hadacheck v. Se- bastian, 239 U.S. 394, 36 S.Ct. 143. 60 L.Ed. 348 (1915). . What matters in such cases is not the degree. of diminution of value, but rather the specificity of the expropriating act. For this reason, the Court's third justi- fication for its new rule also fails. In short, the Court's new rule is unsup- ported by prior decisions, arbitrary and un- sound in practice, and theoretically unjusti- fied. In my opinion, a categorical rule as important as the one established by the Court today should be supported by more history or more reason than has yet been provided. The Nuisance Exception Like many bright-line rules, the categori- cal rule established in this case is only "cate- gorical" for a page or two in the U.S. Re- ports. No sooner does the Court state that "total regulatory takings must be S.Ct. 2138, 2141, 65 L.Ed.2d 106 (I980)(empha- sis added), indicating that this "total takings" test did not apply to other estates. Today, how- ever, the Court suggests that a. regulation may effect a total taking of any real property interest. See ante, at 2894, n. 7.