|
<br />LUCAS v. SOUTH CAROLINA COASTAL COUNCIL
<br />Cite as 112 S.Ct. 2886 (1992)
<br />
<br />the owners of undeveloped land, such as peti- apparent now that in light of our prior cases,
<br />tioner, differ from these costs only in degree, see, e.g., Keystone Bituminous Coal Assn. v.
<br />not in kind. DeBenedictis, 480 U.S. 470, 493-602, 107
<br />The impact of the ban on developmental S.Ct. 1232, 1246-1251, 94 L.Ed.2d 472 (1987);
<br />uses must also be viewed in light of the Andrus v. AUard, 444 U.S. 51, 65-66, 100
<br />purposes of the Act. The legislature stated S.Ct.318, 326,'327,62 L.Ed.2d 210 (1979);
<br />the purposes of the Act as "protect[ing], pre- Penn Central Transportation Corp. v. New
<br />serv[ing], restor[ing]and enhancling] the Yorlt City, 438 U.S. 104, 13()""131, 98 S.Ct.
<br />beach/dune system" of the State not only for 2646, 2662, 57 L.Ed.2d 631 (1978), the trial
<br />recreational and ecological purposes, but also court's conclusion is highly questionable.
<br />to "protec[t] life and property." S.C. Code While the respondent now wishes to contest
<br />Ann. ~ 4~9-260(1)(a) (Supp.1990). The the point, see Brief for Respondent 45-50,
<br />State, with much. science on its side, believes the Court is certainly right to refuse to take
<br />that the "beach/dune system [acts] as a buff- up the. issue, which is not fairly included
<br />erfrom high tides, storm surge, [and] hurri- within . the question presented, and hasre-
<br />canes." Ibid. This is a traditional and im- ceived only the most superficial and one-
<br />porlant exercise of the State's police power, sided treatment before us.
<br />as demonstrated by Hurricane Hugo, which
<br />in 1989, caused 29 deaths and more than $6
<br />billion in property damage in South Carolina
<br />alone.13
<br />
<br />In view of all of these factors, even assum-
<br />ing that petitioner's property was rendered
<br />valueless, the risk inherent in investments of
<br />the sortinade by petitioner, the generality of
<br />the Act, and the compelling purpose motivat-
<br />ing the South ..J.1gr6Carolina Legislature per-
<br />suade me that the Act did not effect a taking
<br />of petitioner's property.
<br />
<br />Accordingly, I respectfully dissent.
<br />
<br />505 U.s. 1077
<br />
<br />Statement of Justice SOUTER.
<br />
<br />I would dismiss the writ of certiorari in
<br />. this case as having been granted improvi-
<br />dently. A:fter briefing and argument it is
<br />abundantly clear that an unreviewable as-
<br />sumption on which thiS case comes to us is
<br />both questionable as a conclusion of Fifth
<br />Amendment law and sufficient to frustrate
<br />the Court's ability to render certain the legal
<br />premises on which its holding rests.
<br />
<br />The petition for review was granted on the
<br />assumption that the State b;y regulation had
<br />deprived the owner of his entireeconQmic
<br />interest in the subject property. Such was
<br />the state trial court's conclusion, which the
<br />State Supreme Court did not review. It is
<br />
<br />13. Zalkin, 79 Calif.L.Rev., at 212-213.
<br />
<br />2925
<br />
<br />Because the questionable conclusion of to-
<br />tal deprivation cannot be reviewed, the Court
<br />is precluded from attempting to clarify the
<br />concept of total (and, in the. Court's view,
<br />categorically compensable) taking on which it
<br />rests, a concept which the Court descn'bes,
<br />see ante, at 2893, n. 6, as so uncertain under
<br />existing law as to have fostered inconsistent
<br />pronouncements by the Court itself. Be-
<br />cause that concept is left uncertain, so is the
<br />significance of the exceptions to the compen-
<br />sation requirement that the Court proceeds
<br />to rec~e'ID77 This alone is enough to
<br />show that there is little utility in attempting
<br />to deal with this case on the merits.
<br />
<br />The imprudence of proceeding to the mer-
<br />its in spite of these unpromising circum-
<br />stances is underscored by the fact that, in
<br />doing so, the CoUrt. cannot help but assume
<br />something about the scope of the uncertain
<br />concept of total deprivation, even when it is
<br />barred from explicating total deprivation di-
<br />rectly. Thus, when the Court concludes that
<br />the application of nuisance law provides an
<br />exception to the general rule that complete
<br />denial of economically beneficial use 'of prop-
<br />erty amounts' to a compensabie taking,'. ilie
<br />Court will be understood to suggest (if it
<br />does not assume) that there are in fact cir-
<br />
|