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Lucas v. South Carolina Coastal Council

ELR Citation: 22 ELR 21104
Nos. No. 91-453, 505 U.S. 1003/34 ERC 1897/(U.S., 06/29/1992) Rev'd & remanded

The Court rules that a South Carolina beachfront regulation that prohibits construction seaward of a setback line cannot be sustained without paying just compensation for a developer's lost use of two vacant beachfront lots. The developer bought the lots, located on a South Carolina barrier island, for $975,000 two years before the passage of the South Carolina Beachfront Management Act, which created a construction-free protected area encompassing the developer's lots. The state supreme court ruled that the Act is designed to prevent harmful or noxious uses, and that compensation is not constitutionally required, regardless of the Act's effect on the property's value. The Court first holds that the developer's claim of an unconstitutional taking without just compensation is ripe, even though he may yet be able to secure a special permit to build on his property under an amendment to the Act passed after briefing and argument before the state supreme court. The Court holds that the taking of the lots is unconditional and permanent; thus the late-created permit procedure need not be pursued before the takings claim may be considered ripe. Moreover, injury-in-fact from the pre-amendment deprivation was properly alleged, and it is not sound process to require that a post-amendment permit be pursued before that component of the takings claim can be considered ripe.

The Court next holds that in situations of total takings, states must identify background principles of nuisance and property law that prohibit the developer's intended use. This demands an inquiry into the degree of harm to public lands and resources, or adjacent private property, posed by the developer's proposed activities, the social value of the developer's activities, and the relative ease with which the alleged harm can be avoided. The Court finds that any confiscatory regulation that prohibits all economically beneficial use of land cannot be newly legislated or decreed without compensation, but must do no more than duplicate the result that could have been achieved in the courts under the state's law of private nuisance or by the state under its complementary power to abate nuisances that affect the public generally. The Court holds that the state supreme court erred in applying the harmful or noxious use principle to decide this case, because it is simply the progenitor of more recent statements that land-use regulation does not amount to a taking if it substantially advances legitimate state interests and does not furnish a basis for departing from the Court's categorical rule that total regulatory takings must be compensated. Rather, the question must turn on citizens' historic understanding and the state's power over the bundle of rights that are acquired when one acquires and takes title to property.

[The South Carolina Supreme Court's decision is published at 21 ELR 20837.]

Counsel for Petitioner
A. Camden Lewis
Lewis, Babcock & Hawkins
1513 Hampton St., PO Box 11208, Columbia SC 29211
(803) 771-8000

Counsel for Respondent
Connie C. Harness
4130 Faber Pl., Ste. 300, Charleston SC 29405
(803) 744-5838