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Lucas v. South Carolina Coastal Council: Indirection in the Evolution of Takings Law

December 1992

Citation: 22 ELR 10778

Issue: 12

Author: David F. Coursen

Editors' Summary: On the last day of its 1992 Spring Term, the U.S. Supreme Court announced its long-awaited decision on land-use regulation in Lucas v. South Carolina Coastal Council, 22 ELR 21104. In Lucas, a 5-4 majority of the Court ruled that the Fifth Amendment requires states to pay compensation when regulations enacted for public purposes, such as environmental protection, deprive landowners of all economically beneficial uses of their property. The Court reviewed a ruling by the South Carolina Supreme Court that state restrictions on the use of the plaintiff's oceanfront property did not work a compensable taking. The Court reversed the South Carolina Supreme Court's holding that no compensation is due a landowner whose private use threatens serious public harm.

Under the majority's opinion in
Lucas, authored by Justice Scalia, Fifth Amendment takings analysis begins with the categorical rule that total regulatory takings must be compensated. The factors to be considered under the Lucas total takings inquiry include the degree of harm to public lands and resources or adjacent private property posed by the landowner's proposed activities; the social value of the landowner's activities and their suitability to the locality in question; and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government or adjacent private landowners. The Court further held that if a regulation prohibits all economically beneficial use of land, compensation is required unless the restriction is inherent in background principles of state nuisance and property law.

This Article explores the facts, holdings, and underlying actions leading up to the
Lucas decision and examines the majority's and four other Justice's opinions. The Article analyzes the Court's categorical rule that total regulatory takings must be compensated and assesses the implications of the Lucas decision for common-law nuisance doctrine, partial takings, and valuation questions. The author concludes that the Court, in articulating a special rule for total takings, creates other implicit rules, suggesting that takings claims will be defeated for property rights subject to state nuisance or property law and that partial takings may be compensable. The danger of these implicit rulings, the author cautions, is that absent clear limiting guidelines, a wider universe of regulations and burdens will become subject to regulatory takings analysis.

David Coursen has been an attorney for the U.S. Environmental Protection Agency's Office of General Counsel in Washington, D.C. for the last five years. Previously, he was a staff attorney for the U.S. Court of Appeals for the Fifth Circuit. He graduated from the University of Oregon Law School. The views expressed in this Article are solely the author's and do not represent the views of EPA.

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