LUCAS v. SOUTH CAROLINA COASTAL COUNCIL
No. 91-453
Supreme Court of the United States
June 29, 1992
505 U.S. 1003
Argued March 2, 1992
A. Camden Lewis argued the cause for petitioner. With him on the briefs were Gerald M. Finkel and David J. Bederman.
C. C. Harness III argued the cause for respondent. With him on the brief were T. Travis Medlock, Attorney General of South Carolina, Kenneth P. Woodington, Senior Assistant Attorney General, and Richard J. Lazarus.*
*Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Clegg, Acting Deputy Assistant Attorney General Cohen, Edwin S. Kneedler, Peter R. Steenland, James E. Brookshire, John A. Bryson, and Martin W. Matzen; for United States Senator Steve Symms et al. by Peter D. Dickson, Howard E. Shapiro, and D. Eric Hultman; for the American Farm Bureau Federation et al. by James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John J. Rademacher, and Richard L. Krause; for the American Mining Congress et al. by George W. Miller, Walter A. Smith, Jr., Stuart A. Sanderson, William E. Hynan, and Robert A. Kirshner; for the Chamber of Commerce of the United States of America by Stephen A. Bokat, Robin S. Conrad, Herbert L. Fenster, and Tami Lyn Azorsky; for Defenders of Property Rights et al. by Nancy G. Marzulla; for the Fire Island Association, Inc., by Bernard S. Meyer; for the Institute for Justice by Richard A. Epstein, William H. Mellor III, Clint Bolick, and Jonathan W. Emord; for the Long Beach Island Oceanfront Homeowners Association et al. by Theodore J. Carlson; for the Mountain States Legal Foundation et al. by William Perry Pendley; for the National Association of Home Builders et al. by Michael M. Berger and William H. Ethier; for the Nemours Foundation, Inc., by John J. Mullenholz; for the Northern Virginia Chapter of the National Association of Industrial and Office Parks et al. by John Holland Foote and John F. Cahill; for the Pacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and R. S. Radford; and for the South Carolina Policy Council Education Foundation et al. by G. Stephen Parker.
Briefs of amici curiae urging affirmance were filed for the State of California by Daniel E. Lungren, Attorney General, Roderick E. Walston,
Briefs of amici curiae were filed for the National Association of Realtors by Ralph W. Holmen; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.
JUSTICE SCALIA delivered the opinion of the Court.
In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in Charleston County, South Carolina, on which he intended to build single-family homes. In 1988, however, the South Carolina Legislature enacted the Beachfront Management Act,
I
A
South Carolina‘s expressed interest in intensively managing development activities in the so-called “coastal zone” dates from 1977 when, in the aftermath of Congress‘s passage of the federal Coastal Zone Management Act of 1972, 86 Stat. 1280, as amended,
In the late 1970‘s, Lucas and others began extensive residential development of the Isle of Palms, a barrier island situated eastward of the city of Charleston. Toward the close of the development cycle for one residential subdivision known as “Beachwood East,” Lucas in 1986 purchased the two lots at issue in this litigation for his own account. No portion of the lots, which were located approximately 300 feet from the beach, qualified as a “critical area” under the 1977 Act; accordingly, at the time Lucas acquired these parcels, he was not legally obliged to obtain a permit from the Council in advance of any development activity. His intention with respect to the lots was to do what the owners of the immediately adjacent parcels had already done: erect single-family residences. He commissioned architectural drawings for this purpose.
The Beachfront Management Act brought Lucas‘s plans to an abrupt end. Under that 1988 legislation, the Council was directed to establish a “baseline” connecting the landward-most “point[s] of erosion . . . during the past forty years” in the region of the Isle of Palms that includes Lucas‘s lots.
B
Lucas promptly filed suit in the South Carolina Court of Common Pleas, contending that the Beachfront Management Act‘s construction bar effected a taking of his property without just compensation. Lucas did not take issue with the validity of the Act as a lawful exercise of South Carolina‘s police power, but contended that the Act‘s complete extinguishment of his property‘s value entitled him to compensation regardless of whether the legislature had acted in furtherance of legitimate police power objectives. Following a bench trial, the court agreed. Among its factual determinations was the finding that “at the time Lucas purchased the two lots, both were zoned for single-family residential construction and . . . there were no restrictions imposed upon such use of the property by either the State of South Carolina, the County of Charleston, or the Town of the Isle of Palms.” App. to Pet. for Cert. 36. The trial court further found that the Beachfront Management Act decreed a permanent ban on construction insofar as Lucas‘s lots were concerned, and that this prohibition “deprive[d] Lucas of any reasonable economic use of the lots, . . . eliminated the unrestricted right of use, and render[ed] them valueless.” Id., at 37. The court thus concluded that Lucas‘s properties had been “taken” by operation of the Act, and it ordered respondent to pay “just compensation” in the amount of $1,232,387.50. Id., at 40.
The Supreme Court of South Carolina reversed. It found dispositive what it described as Lucas‘s concession “that the
Two justices dissented. They acknowledged that our Mugler line of cases recognizes governmental power to prohibit “noxious” uses of property—i. e., uses of property akin to “public nuisances“—without having to pay compensation. But they would not have characterized the Beachfront Management Act‘s “primary purpose [as] the prevention of a nuisance.” 304 S. C., at 395, 404 S. E. 2d, at 906 (Harwell, J., dissenting). To the dissenters, the chief purposes of the legislation, among them the promotion of tourism and the creation of a “habitat for indigenous flora and fauna,” could not fairly be compared to nuisance abatement. Id., at 396, 404 S. E. 2d, at 906. As a consequence, they would have affirmed the trial court‘s conclusion that the Act‘s obliteration of the value of petitioner‘s lots accomplished a taking.
We granted certiorari. 502 U. S. 966 (1991).
II
As a threshold matter, we must briefly address the Council‘s suggestion that this case is inappropriate for plenary review. After briefing and argument before the South Carolina Supreme Court, but prior to issuance of that court‘s opinion, the Beachfront Management Act was amended to
We think these considerations would preclude review had the South Carolina Supreme Court rested its judgment on ripeness grounds, as it was (essentially) invited to do by the Council. See Brief for Respondent 9, n. 3. The South Carolina Supreme Court shrugged off the possibility of further administrative and trial proceedings, however, preferring to dispose of Lucas‘s takings claim on the merits. Cf., e. g., San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 631-632 (1981). This unusual disposition does not preclude Lucas from applying for a permit under the 1990 amendment for future construction, and challenging, on takings grounds, any denial. But it does preclude, both practically and legally, any takings claim with respect to Lucas‘s past deprivation, i. e., for his having been denied construction rights during the period before the 1990 amendment. See generally First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987) (holding that
In these circumstances, we think it would not accord with sound process to insist that Lucas pursue the late-created “special permit” procedure before his takings claim can be considered ripe. Lucas has properly alleged Article III injury in fact in this case, with respect to both the pre-1990 and post-1990 constraints placed on the use of his parcels by the Beachfront Management Act.3 That there is a discre-
III
A
Prior to Justice Holmes‘s exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause reached only a “direct appropriation” of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a “practical ouster of [the owner‘s] possession,” Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). See also Gibson v. United States, 166 U. S. 269, 275-276 (1897). Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government‘s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U. S., at 414-415. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].” Id., at 415. These considerations gave birth in that case to the oft-cited maxim that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Ibid.
The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. See Agins, 447 U. S., at 260; see also Nollan v. California Coastal Comm‘n, 483 U. S. 825, 834 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 295-296 (1981).6 As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests or denies an owner economically viable use of his land.” Agins, supra, at 260 (citations omitted) (emphasis added).7
We have never set forth the justification for this rule. Perhaps it is simply, as Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner‘s point of view, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San Diego, 450 U. S., at 652 (dissenting opinion). “[F]or what is the land but the profits thereof[?]” 1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812). Surely, at least, in the extraordinary circumstance when no productive or economically beneficial use of land is permitted, it is less realistic to indulge our usual assumption that the legislature is simply “adjusting the benefits and burdens of economic life,” Penn Central Transportation Co., 438 U. S., at 124, in a manner that secures an “average reciprocity of advantage” to everyone concerned, Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415. And the functional basis for permitting the government, by regulation, to affect property values without compensation—that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” id., at 413—does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use—typically, as here, by requiring land to be left substantially in its natural state—carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. See, e. g., Annicelli v. South Kingstown, 463 A. 2d 133, 140-141 (R. I. 1983) (prohibition on construction adjacent to beach justified on twin grounds of safety and “conservation of open space“); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N. J. 539, 552-553, 193 A. 2d 232, 240 (1963) (prohibition on filling marshlands imposed in order to preserve region as water detention basin and create wildlife refuge). As Justice Brennan explained: “From the government‘s point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property.” San Diego Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes on the books, both state and federal, that
We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.8
The trial court found Lucas‘s two beachfront lots to have been rendered valueless by respondent‘s enforcement of the coastal-zone construction ban.9 Under Lucas‘s theory of the case, which rested upon our “no economically viable use” statements, that finding entitled him to compensation. Lucas believed it unnecessary to take issue with either the purposes behind the Beachfront Management Act, or the means chosen by the South Carolina Legislature to effectuate those purposes. The South Carolina Supreme Court, however, thought otherwise. In its view, the Beachfront Management Act was no ordinary enactment, but involved an exercise of South Carolina‘s “police powers” to mitigate the harm to the public interest that petitioner‘s use of his
It is correct that many of our prior opinions have suggested that “harmful or noxious uses” of property may be proscribed by government regulation without the requirement of compensation. For a number of reasons, however, we think the South Carolina Supreme Court was too quick to conclude that that principle decides the present case. The “harmful or noxious uses” principle was the Court‘s early attempt to describe in theoretical terms why government
may, consistent with the“[T]he uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no ‘blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual.’ Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any supposed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation—expected to produce a widespread public benefit and applicable to all similarly situated property.” 438 U. S., at 133-134, n. 30.
“Harmful or noxious use” analysis was, in other words, simply the progenitor of our more contemporary statements that
The transition from our early focus on control of “noxious” uses to our contemporary understanding of the broad realm within which government may regulate without compensation was an easy one, since the distinction between “harm-preventing” and “benefit-conferring” regulation is often in the eye of the beholder. It is quite possible, for example, to describe in either fashion the ecological, economic, and esthetic concerns that inspired the South Carolina Legislature in the present case. One could say that imposing a servitude on Lucas‘s land is necessary in order to prevent his use of it from “harming” South Carolina‘s ecological resources; or, instead, in order to achieve the “benefits” of an ecological preserve.11 Compare, e. g., Claridge v. New Hampshire Wetlands Board, 125 N. H. 745, 752, 485 A. 2d 287, 292 (1984)
Where “permanent physical occupation” of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted “public interests” involved, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982)—though we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the land-
On this analysis, the owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others’ land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault. Such regulatory action may well have the effect of eliminating the land‘s only economically productive use, but it does not proscribe a productive use that was previously permissible
The “total taking” inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property,
It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner‘s land; they rarely support prohibition of the “essential use” of land, Curtin v. Benson, 222 U. S. 78, 86 (1911). The question, however, is one of state law to be dealt with on remand. We emphasize that to win its case South Carolina must do more than proffer the legislature‘s declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas. As we have said, a “State, by ipse dixit, may not transform private property into public property without compensation . . . .” Webb‘s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980). Instead, as it would be required to do if it sought to restrain Lucas in a common-law action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can
* * *
The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
So ordered.
JUSTICE KENNEDY, concurring in the judgment.
The case comes to the Court in an unusual posture, as all my colleagues observe. Ante, at 1010-1011; post, at 1041 (BLACKMUN, J., dissenting); post, at 1061-1062 (STEVENS, J., dissenting); post, at 1076-1077 (statement of SOUTER, J.). After the suit was initiated but before it reached us, South Carolina amended its Beachfront Management Act to authorize the issuance of special permits at variance with the Act‘s general limitations. See
The potential for future relief does not control our disposition, because whatever may occur in the future cannot undo
The issues presented in the case are ready for our decision. The Supreme Court of South Carolina decided the case on constitutional grounds, and its rulings are now before us. There exists no jurisdictional bar to our disposition, and prudential considerations ought not to militate against it. The State cannot complain of the manner in which the issues arose. Any uncertainty in this regard is attributable to the State, as a consequence of its amendment to the Beachfront Management Act. If the
Although we establish a framework for remand, moreover, we do not decide the ultimate question whether a temporary taking has occurred in this case. The facts necessary to the determination have not been developed in the record. Among the matters to be considered on remand must be whether petitioner had the intent and capacity to develop the property and failed to do so in the interim period because the State prevented him. Any failure by petitioner to comply with relevant administrative requirements will be part of that analysis.
The South Carolina Court of Common Pleas found that petitioner‘s real property has been rendered valueless by the State‘s regulation. App. to Pet. for Cert. 37. The finding appears to presume that the property has no significant mar-
The finding of no value must be considered under the
There is an inherent tendency towards circularity in this synthesis, of course; for if the owner‘s reasonable expectations are shaped by what courts allow as a proper exercise of governmental authority, property tends to become what courts say it is. Some circularity must be tolerated in these matters, however, as it is in other spheres. E. g., Katz v. United States, 389 U. S. 347 (1967) (Fourth Amendment protections defined by reasonable expectations of privacy). The definition, moreover, is not circular in its entirety. The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved.
In my view, reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society. Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962). The State should not be prevented from enacting new regulatory initiatives in response to changing conditions, and courts must consider all reasonable expectations whatever their source. The
The Supreme Court of South Carolina erred, in my view, by reciting the general purposes for which the state regulations were enacted without a determination that they were in accord with the owner‘s reasonable expectations and therefore sufficient to support a severe restriction on specific parcels of property. See 304 S. C. 376, 383, 404 S. E. 2d 895, 899 (1991). The promotion of tourism, for instance, ought not to suffice to deprive specific property of all value without a corresponding duty to compensate. Furthermore, the means, as well as the ends, of regulation must accord with the owner‘s reasonable expectations. Here, the State did not act until after the property had been zoned for individual
With these observations, I concur in the judgment of the Court.
JUSTICE BLACKMUN, dissenting.
Today the Court launches a missile to kill a mouse.
The State of South Carolina prohibited petitioner Lucas from building a permanent structure on his property from 1988 to 1990. Relying on an unreviewed (and implausible) state trial court finding that this restriction left Lucas’ property valueless, this Court granted review to determine whether compensation must be paid in cases where the State prohibits all economic use of real estate. According to the Court, such an occasion never has arisen in any of our prior cases, and the Court imagines that it will arise “relatively rarely” or only in “extraordinary circumstances.” Almost certainly it did not happen in this case.
Nonetheless, the Court presses on to decide the issue, and as it does, it ignores its jurisdictional limits, remakes its traditional rules of review, and creates simultaneously a new categorical rule and an exception (neither of which is rooted in our prior case law, common law, or common sense). I protest not only the Court‘s decision, but each step taken to reach it. More fundamentally, I question the Court‘s wisdom in issuing sweeping new rules to decide such a narrow case. Surely, as JUSTICE KENNEDY demonstrates, the Court could have reached the result it wanted without inflicting this damage upon our
My fear is that the Court‘s new policies will spread beyond the narrow confines of the present case. For that reason, I, like the Court, will give far greater attention to this case than its narrow scope suggests—not because I can intercept
I
A
In 1972 Congress passed the
South Carolina began implementing the congressional directive by enacting the South Carolina Coastal Zone Management Act of 1977. Under the 1977 Act, any construction activity in what was designated the “critical area” required a permit from the South Carolina Coastal Council (Council), and the construction of any habitable structure was prohibited. The 1977 critical area was relatively narrow.
This effort did not stop the loss of shoreline. In October 1986, the Council appointed a “Blue Ribbon Committee on Beachfront Management” to investigate beach erosion and
B
Petitioner Lucas is a contractor, manager, and part owner of the Wild Dune development on the Isle of Palms. He has lived there since 1978. In December 1986, he purchased two of the last four pieces of vacant property in the development.3 The area is notoriously unstable. In roughly half of the last 40 years, all or part of petitioner‘s property was part of the beach or flooded twice daily by the ebb and flow of the tide. Tr. 84. Between 1957 and 1963, petitioner‘s property was under water. Id., at 79, 81-82. Between 1963 and 1973 the shoreline was 100 to 150 feet onto petitioner‘s property. Ibid. In 1973 the first line of stable vegetation was about halfway through the property. Id., at 80. Between 1981 and 1983, the Isle of Palms issued 12 emergency orders for
C
The South Carolina Supreme Court found that the Beachfront Management Act did not take petitioner‘s property without compensation. The decision rested on two premises that until today were unassailable—that the State has the power to prevent any use of property it finds to be harmful to its citizens, and that a state statute is entitled to a presumption of constitutionality.
The Beachfront Management Act includes a finding by the South Carolina General Assembly that the beach/dune system serves the purpose of “protect[ing] life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner.”
If the state legislature is correct that the prohibition on building in front of the setback line prevents serious harm, then, under this Court‘s prior cases, the Act is constitutional. “Long ago it was recognized that all property in this country is held under the implied obligation that the owner‘s use of it shall not be injurious to the community, and the
Petitioner never challenged the legislature‘s findings that a building ban was necessary to protect property and life. Nor did he contend that the threatened harm was not sufficiently serious to make building a house in a particular location a “harmful” use, that the legislature had not made sufficient findings, or that the legislature was motivated by anything other than a desire to minimize damage to coastal areas. Indeed, petitioner objected at trial that evidence as to the purposes of the setback requirement was irrelevant. Tr. 68. The South Carolina Supreme Court accordingly understood petitioner not to contest the State‘s position that “discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm,” 304 S. C. 376, 383, 404 S. E. 2d 895, 898 (1991), and “to prevent serious injury to the community.” Id., at 387, 404 S. E. 2d, at 901. The court considered itself “bound by these uncontested legislative findings . . . [in the absence of] any attack whatsoever on the statutory scheme.” Id., at 383, 404 S. E. 2d, at 898.
Nothing in the record undermines the General Assembly‘s assessment that prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion. Because that legislative determination cannot be disregarded in the absence of such evidence, see, e. g., Euclid, 272 U. S., at 388; O‘Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U. S. 251, 257-258 (1931) (Brandeis, J.), and because its determination
II
My disagreement with the Court begins with its decision to review this case. This Court has held consistently that a land-use challenge is not ripe for review until there is a final decision about what uses of the property will be permitted. The ripeness requirement is not simply a gesture of good will to land-use planners. In the absence of “a final and authoritative determination of the type and intensity of development legally permitted on the subject property,” MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 348 (1986), and the utilization of state procedures for just compensation, there is no final judgment, and in the absence of a final judgment there is no jurisdiction, see San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 633 (1981); Agins v. City of Tiburon, 447 U. S. 255, 260 (1980).
This rule is “compelled by the very nature of the inquiry required by the
The Court admits that the 1990 amendments to the Beachfront Management Act allowing special permits preclude Lucas from asserting that his property has been permanently taken. See ante, at 1011-1012. The Court agrees that such a claim would not be ripe because there has been no final decision by respondent on what uses will be permitted.
From the very beginning of this litigation, respondent has argued that the courts
“lac[k] jurisdiction in this matter because the Plaintiff has sought no authorization from Council for use of his property, has not challenged the location of the baseline or setback line as alleged in the Complaint and because no final agency decision has been rendered concerning use of his property or location of said baseline or setback line.” Tr. 10 (answer, as amended).
Although the Council‘s plea has been ignored by every court, it is undoubtedly correct.
Under the Beachfront Management Act, petitioner was entitled to challenge the setback line or the baseline or erosion rate applied to his property in formal administrative, followed by judicial, proceedings.
That petitioner‘s property fell within the critical area as initially interpreted by the Council does not excuse petitioner‘s failure to challenge the Act‘s application to his property in the administrative process. The claim is not ripe until petitioner seeks a variance from that status. “[W]e have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 126 (1985). See also Williamson County, 473 U. S., at 188 (claim not ripe because respondent did not seek variances that would have allowed it to develop the property, notwithstanding the commission‘s finding that the plan did not comply with the zoning ordinance and subdivision regulations).5
Even if I agreed with the Court that there were no jurisdictional barriers to deciding this case, I still would not try to decide it. The Court creates its new takings jurisprudence based on the trial court‘s finding that the property
Yet the trial court, apparently believing that “less value” and “valueless” could be used interchangeably, found the property “valueless.” The court accepted no evidence from the State on the property‘s value without a home, and petitioner‘s appraiser testified that he never had considered what the value would be absent a residence. Tr. 54-55. The appraiser‘s value was based on the fact that the “highest and best use of these lots [is] luxury single family detached dwellings.” Id., at 48. The trial court appeared to believe that the property could be considered “valueless” if it was not available for its most profitable use. Absent that erroneous assumption, see Goldblatt, 369 U. S., at 592, I find no evidence in the record supporting the trial court‘s conclusion that the damage to the lots by virtue of the restrictions
Clearly, the Court was eager to decide this case.7 But eagerness, in the absence of proper jurisdiction, must—and in this case should have been—met with restraint.
III
The Court‘s willingness to dispense with precedent in its haste to reach a result is not limited to its initial jurisdictional decision. The Court also alters the long-settled rules of review.
The South Carolina Supreme Court‘s decision to defer to legislative judgments in the absence of a challenge from petitioner comports with one of this Court‘s oldest maxims: “[T]he existence of facts supporting the legislative judgment is to be presumed.” United States v. Carolene Products Co., 304 U. S. 144, 152 (1938). Indeed, we have said the legislature‘s judgment is “well-nigh conclusive.” Berman v. Par-ker, 348 U. S. 26, 32 (1954). See also Sweet v. Rechel, 159 U. S. 380, 392 (1895); Euclid, 272 U. S., at 388 (“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control“).
Accordingly, this Court always has required plaintiffs challenging the constitutionality of an ordinance to provide “some factual foundation of record” that contravenes the legislative findings. O‘Gorman & Young, 282 U. S., at 258. In the absence of such proof, “the presumption of constitutionality must prevail.” Id., at 257. We only recently have reaffirmed that claimants have the burden of showing a state law constitutes a taking. See Keystone Bituminous Coal, 480 U. S., at 485. See also Goldblatt, 369 U. S., at 594 (citing “the usual presumption of constitutionality” that applies to statutes attacked as takings).
Rather than invoking these traditional rules, the Court decides the State has the burden to convince the courts that its legislative judgments are correct. Despite Lucas’ complete failure to contest the legislature‘s findings of serious harm to life and property if a permanent structure is built, the Court decides that the legislative findings are not sufficient to justify the use prohibition. Instead, the Court “emphasize[s]” the State must do more than merely proffer its legislative judgments to avoid invalidating its law. Ante, at 1031. In this case, apparently, the State now has the burden of showing the regulation is not a taking. The Court offers no justification for its sudden hostility toward state legislators, and I doubt that it could.
IV
The Court does not reject the South Carolina Supreme Court‘s decision simply on the basis of its disbelief and distrust of the legislature‘s findings. It also takes the opportunity to create a new scheme for regulations that eliminate all economic value. From now on, there is a categorical rule finding these regulations to be a taking unless the use they
A
I first question the Court‘s rationale in creating a category that obviates a “case-specific inquiry into the public interest advanced,” ante, at 1015, if all economic value has been lost. If one fact about the Court‘s takings jurisprudence can be stated without contradiction, it is that “the particular circumstances of each case” determine whether a specific restriction will be rendered invalid by the government‘s failure to pay compensation. United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958). This is so because although we have articulated certain factors to be considered, including the economic impact on the property owner, the ultimate conclusion “necessarily requires a weighing of private and public interests.” Agins, 447 U. S., at 261. When the government regulation prevents the owner from any economically valuable use of his property, the private interest is unquestionably substantial, but we have never before held that no public interest can outweigh it. Instead the Court‘s prior decisions “uniformly reject the proposition that diminution in property value, standing alone, can establish a ‘taking.‘” Penn Central Transp. Co. v. New York City, 438 U. S. 104, 131 (1978).
This Court repeatedly has recognized the ability of government, in certain circumstances, to regulate property without compensation no matter how adverse the financial effect on the owner may be. More than a century ago, the Court explicitly upheld the right of States to prohibit uses of property injurious to public health, safety, or welfare without paying compensation: “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property.” Mugler v. Kansas, 123 U. S., at 668-669. On this basis, the Court upheld an ordinance effectively prohibiting operation of a previously lawful brewery, although the “establishments will become of no value as property.” Id., at 664; see also id., at 668.
Mugler was only the beginning in a long line of cases.8 In Powell v. Pennsylvania, 127 U. S. 678 (1888), the Court upheld legislation prohibiting the manufacture of oleomargarine, despite the owner‘s allegation that “if prevented from continuing it, the value of his property employed therein would be entirely lost and he be deprived of the means of livelihood.” Id., at 682. In Hadacheck v. Sebastian, 239 U. S. 394 (1915), the Court upheld an ordinance prohibiting a brickyard, although the owner had made excavations on the land that prevented it from being utilized for any purpose but a brickyard. Id., at 405. In Miller v. Schoene, 276 U. S. 272 (1928), the Court held that the Fifth Amendment did not require Virginia to pay compensation to the owner of cedar trees ordered destroyed to prevent a disease from spreading to nearby apple orchards. The “preferment of [the public interest] over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” Id., at 280. Again, in Omnia Commercial Co. v. United States, 261 U. S. 502 (1923), the Court stated that “destruction of, or injury to, property is frequently accomplished without a ‘taking’ in the constitutional sense.” Id., at 508.
More recently, in Goldblatt, the Court upheld a town regulation that barred continued operation of an existing sand and gravel operation in order to protect public safety. 369
The Court recognizes that “our prior opinions have suggested that ‘harmful or noxious uses’ of property may be proscribed by government regulation without the requirement of compensation,” ante, at 1022, but seeks to reconcile them with its categorical rule by claiming that the Court never has upheld a regulation when the owner alleged the loss of all economic value. Even if the Court‘s factual premise were correct, its understanding of the Court‘s cases is distorted. In none of the cases did the Court suggest that the right of a State to prohibit certain activities without paying compensation turned on the availability of some residual valuable use.12 Instead, the cases depended on whether the
These cases rest on the principle that the State has full power to prohibit an owner‘s use of property if it is harmful to the public. “[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not ‘taken’ anything when it asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous Coal, 480 U. S., at 491, n. 20. It would make no sense under this theory to suggest that an owner has a constitutionally protected right to harm others, if only he makes the proper showing of economic loss.14 See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 418 (1922) (Brandeis, J., dissenting) (“Restriction upon [harmful] use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put“).
Ultimately even the Court cannot embrace the full implications of its per se rule: It eventually agrees that there cannot be a categorical rule for a taking based on economic value that wholly disregards the public need asserted. Instead, the Court decides that it will permit a State to regulate all economic value only if the State prohibits uses that would not be permitted under “background principles of nuisance and property law.”15 Ante, at 1031.
Until today, the Court explicitly had rejected the contention that the government‘s power to act without paying compensation turns on whether the prohibited activity is a common-law nuisance.16 The brewery closed in Mugler itself was not a common-law nuisance, and the Court specifically stated that it was the role of the legislature to deter-
The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without granting compensation because “the distinction between ‘harm-preventing’ and ‘benefit-conferring’ regulation is often in the eye of the beholder.” Ante, at 1024. Since the characterization will depend “primarily upon one‘s evaluation of the worth of competing uses of real estate,” ante, at 1025, the Court decides a legislative judgment of this kind no longer can provide the desired “objective, value-free basis” for upholding a regulation, ante, at 1026. The Court, however, fails to explain how its proposed common-law alternative escapes the same trap.
The Court‘s decision in Keystone Bituminous Coal illustrates this principle perfectly. In Keystone, the Court determined that the “support estate” was “merely a part of the entire bundle of rights possessed by the owner.” 480 U. S., at 501. Thus, the Court concluded that the support estate‘s destruction merely eliminated one segment of the total property. Ibid. The dissent, however, characterized the support estate as a distinct property interest that was wholly destroyed. Id., at 519. The Court could agree on no “value-free basis” to resolve this dispute.
Even more perplexing, however, is the Court‘s reliance on common-law principles of nuisance in its quest for a value-free takings jurisprudence. In determining what is a nuisance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common-law public and private nui-
C
Finally, the Court justifies its new rule that the legislature may not deprive a property owner of the only economically valuable use of his land, even if the legislature finds it to be a harmful use, because such action is not part of the “long recognized” “understandings of our citizens.” Ante, at 1027. These “understandings” permit such regulation only if the use is a nuisance under the common law. Any other course is “inconsistent with the historical compact recorded in the Takings Clause.” Ante, at 1028. It is not clear from the Court‘s
“The colonists... inherited... a concept of property which permitted extensive regulation of the use of that property for the public benefit—regulation that could even go so far as to deny all productive use of the property to the owner if, as Coke himself stated, the regulation ‘extends to the public benefit... for this is for the public, and every one hath benefit by it.‘” F. Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of the King‘s Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606) (hereinafter Bosselman).
See also Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 697, n. 9 (1985).20
Even into the 19th century, state governments often felt free to take property for roads and other public projects without paying compensation to the owners.21 See M. Horwitz, The Transformation of American Law, 1780-1860, pp. 63-64 (1977) (hereinafter Horwitz); Treanor, 94 Yale L. J., at 695. As one court declared in 1802, citizens “were bound
Although, prior to the adoption of the Bill of Rights, America was replete with land-use regulations describing which activities were considered noxious and forbidden, see Bender, The Takings Clause: Principles or Politics?, 34 Buffalo L. Rev. 735, 751 (1985); L. Friedman, A History of American Law 66-68 (1973), the
Even when courts began to consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public.24 In the Coates cases, for example, the Supreme Court of New York found no taking in New York‘s ban on the interment of the dead within the city, although “no other use can be made of these lands.” Coates v. City of New York, 7 Cow. 585, 592 (N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538 (N. Y. 1826); Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass. 1851); St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 146, 137 S. W. 929, 942 (1911), appeal dism‘d, 231 U. S. 761 (1913). More recent cases reach the same result. See Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism‘d, 371 U. S. 36 (1962); Nassr v.
In addition, state courts historically have been less likely to find that a government action constitutes a taking when the affected land is undeveloped. According to the South Carolina court, the power of the legislature to take unimproved land without providing compensation was sanctioned by “ancient rights and principles.” Lindsay v. Commissioners, 2 S. C. L. 38, 57 (1796). “Except for Massachusetts, no colony appears to have paid compensation when it built a state-owned road across unimproved land. Legislatures provided compensation only for enclosed or improved land.” Treanor, 94 Yale L. J., at 695 (footnotes omitted). This rule was followed by some States into the 1800‘s. See Horwitz 63-65.
With similar result, the common agrarian conception of property limited owners to “natural” uses of their land prior to and during much of the 18th century. See id., at 32. Thus, for example, the owner could build nothing on his land that would alter the natural flow of water. See id., at 44; see also, e. g., Merritt v. Parker, 1 Coxe 460, 463 (N. J. 1795). Some more recent state courts still follow this reasoning. See, e. g., Just v. Marinette County, 56 Wis. 2d 7, 201 N. W. 2d 761, 768 (1972).
Nor does history indicate any common-law limit on the State‘s power to regulate harmful uses even to the point of destroying all economic value. Nothing in the discussions in Congress concerning the Takings Clause indicates that the Clause was limited by the common-law nuisance doctrine. Common-law courts themselves rejected such an understanding. They regularly recognized that it is “for the legislature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public.”
In short, I find no clear and accepted “historical compact” or “understanding of our citizens” justifying the Court‘s new takings doctrine. Instead, the Court seems to treat history as a grab bag of principles, to be adopted where they support the Court‘s theory, and ignored where they do not. If the Court decided that the early common law provides the background principles for interpreting the Takings Clause, then regulation, as opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period provides the background principles, then regulation might be compensable, but the Court would have to confront the fact that legislatures regularly determined which uses were prohibited, independent of the common law, and independent of whether the uses were lawful when the owner purchased. What makes the Court‘s analysis unworkable is its attempt to package the law of two incompatible eras and peddle it as historical fact.26
V
The Court makes sweeping and, in my view, misguided and unsupported changes in our takings doctrine. While it limits these changes to the most narrow subset of government regulation—those that eliminate all economic value from land—these changes go far beyond what is necessary to secure petitioner Lucas’ private benefit. One hopes they do not go beyond the narrow confines the Court assigns them to today.
I dissent.
JUSTICE STEVENS, dissenting.
Today the Court restricts one judge-made rule and expands another. In my opinion it errs on both counts. Proper application of the doctrine of judicial restraint would avoid the premature adjudication of an important constitutional question. Proper respect for our precedents would avoid an illogical expansion of the concept of “regulatory takings.”
I
As the Court notes, ante, at 1010-1011, South Carolina‘s Beachfront Management Act has been amended to permit some construction of residences seaward of the line that frustrated petitioner‘s proposed use of his property. Until he exhausts his right to apply for a special permit under that amendment, petitioner is not entitled to an adjudication by this Court of the merits of his permanent takings claim. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 351 (1986).
It is also not clear that he has a viable “temporary takings” claim. If we assume that petitioner is now able to build on the lot, the only injury that he may have suffered is
It is true, as the Court notes, that the argument against deciding the constitutional issue in this case rests on prudential considerations rather than a want of jurisdiction. I think it equally clear, however, that a Court less eager to decide the merits would follow the wise counsel of Justice Brandeis in his deservedly famous concurring opinion in Ashwander v. TVA, 297 U. S. 288, 341 (1936). As he explained, the Court has developed “for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Id., at 346. The second of those rules applies directly to this case.
“2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U. S. 33, 39; [citing five additional cases]. ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ Burton v. United States, 196 U. S. 283, 295.” Id., at 346-347.
Cavalierly dismissing the doctrine of judicial restraint, the Court today tersely announces that “we do not think it prudent to apply that prudential requirement here.” Ante, at
II
In its analysis of the merits, the Court starts from the premise that this Court has adopted a “categorical rule that total regulatory takings must be compensated,” ante, at 1026, and then sets itself to the task of identifying the exceptional cases in which a State may be relieved of this categorical obligation, ante, at 1027-1029. The test the Court announces is that the regulation must “do no more than duplicate the result that could have been achieved” under a State‘s nuisance law. Ante, at 1029. Under this test the categorical rule will apply unless the regulation merely makes explicit what was otherwise an implicit limitation on the owner‘s property rights.
In my opinion, the Court is doubly in error. The categorical rule the Court establishes is an unsound and unwise addition to the law and the Court‘s formulation of the exception to that rule is too rigid and too narrow.
The Categorical Rule
As the Court recognizes, ante, at 1015, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), provides no support for its—or, indeed, any—categorical rule. To the contrary, Justice Holmes recognized that such absolute rules ill fit the inquiry into “regulatory takings.” Thus, in the paragraph that contains his famous observation that a regulation may go “too far” and thereby constitute a taking, the Justice wrote: “As we already have said, this is a question of degree—and therefore cannot be disposed of by general propositions.” Id., at 416. What he had “already . . . said” made perfectly clear that Justice Holmes regarded economic injury to be merely one factor to be weighed: “One fact for consideration in determining such limits is the extent of the diminu
Nor does the Court‘s new categorical rule find support in decisions following Mahon. Although in dicta we have sometimes recited that a law “effects a taking if [it] . . . denies an owner economically viable use of his land,” Agins v. City of Tiburon, 447 U. S. 255, 260 (1980), our rulings have rejected such an absolute position. We have frequently—and recently—held that, in some circumstances, a law that renders property valueless may nonetheless not constitute a taking. See, e. g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 313 (1987); Goldblatt v. Hempstead, 369 U. S. 590, 596 (1962); United States v. Caltex, 344 U. S. 149, 155 (1952); Miller v. Schoene, 276 U. S. 272 (1928); Hadacheck v. Sebastian, 239 U. S. 394, 405 (1915); Mugler v. Kansas, 123 U. S. 623, 657 (1887); cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1011 (1984); Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 225 (1986). In short, as we stated in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 490 (1987), “‘Although a comparison of values before and after’ a regulatory action ‘is relevant, . . . it is by no means conclusive.‘”
In addition to lacking support in past decisions, the Court‘s new rule is wholly arbitrary. A landowner whose property is diminished in value 95% recovers nothing, while an owner whose property is diminished in value 100% recovers the land‘s full value. The case at hand illustrates this arbitrariness well. The Beachfront Management Act not only prohibited the building of new dwellings in certain areas, it also prohibited the rebuilding of houses that were “destroyed beyond repair by natural causes or by fire.”
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 Mugler, the brickyard in Hadacheck, 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 1026, n. 13.
On the other hand, developers and investors may market specialized estates 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
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 deprivation of feasible use is, from the landowner‘s point of view, the equivalent of a physical appropriation.” Ante, at 1017. This argument proves too much. From the “landowner‘s point of view,” a regulation that diminishes 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 constitute a taking. See Euclid v. Ambler Realty Co., 272 U. S. 365, 384 (1926) (75% diminution in value). Thus, the landowner‘s perception of the regulation 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 government‘s ability to “go on.” Ante, at 1018. This argument proves too little. Certainly it is true that defining a small class of regulations that are per se takings will not
Finally, the Court suggests that “regulations that leave the owner . . . without economically 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 below, 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., Nollan v. California Coastal Comm‘n, 483 U. S. 825, 837 (1987); J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 432 A. 2d 12 (1981); and it may deprive him of all of his property without singling him out, see, e. g., Mugler v. Kansas, 123 U. S. 623 (1887); Hadacheck v. Sebastian, 239 U. S. 394 (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 justification for its new rule also fails.
In short, the Court‘s new rule is unsupported by prior decisions, arbitrary and unsound in practice, and theoretically unjustified. 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 categorical rule established in this case is only “categorical” for a page or two in the U. S. Reports. No sooner does the Court state that “total regulatory takings must be compensated,” ante, at 1026, than it quickly establishes an exception to that rule.
“It is true, that, when the defendants . . . erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. [T]he supervision of the public health and the public morals is a governmental power, ‘continuing in its nature,’ and ‘to be dealt with as the special exigencies of the moment may require;’ . . . ‘for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.‘” Id., at 669.
Under our reasoning in Mugler, a State‘s decision to prohibit or to regulate certain uses of property is not a compensable taking just because the particular uses were previously lawful. Under the Court‘s opinion today, however, if a State should decide to prohibit the manufacture of asbestos, cigarettes, or concealable firearms, for example, it must be prepared to pay for the adverse economic consequences of its decision. One must wonder if government will be able to “go on” effectively if it must risk compensation “for every such change in the general law.” Mahon, 260 U. S., at 413.
The Court‘s holding today effectively freezes the State‘s common law, denying the legislature much of its traditional
“If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U. S. 45 (1905), when common-law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.” PruneYard Shopping Center v. Robins, 447 U. S. 74, 93 (1980) (concurring opinion).
Arresting the development of the common law is not only a departure from our prior decisions; it is also profoundly unwise. The human condition is one of constant learning and evolution—both moral and practical. Legislatures implement that new learning; in doing so they must often revise the definition of property and the rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated the emancipation of all slaves, it, in effect, redefined “property.” On a lesser scale, our ongoing self-education produces similar changes in the rights of property owners: New appreciation of the significance of endangered species, see, e. g., Andrus v. Allard, 444 U. S. 51 (1979); the importance of wetlands, see, e. g.,
Of course, some legislative redefinitions of property will effect a taking and must be compensated—but it certainly cannot be the case that every movement away from common law does so. There is no reason, and less sense, in such an absolute rule. We live in a world in which changes in the economy and the environment occur with increasing frequency and importance. If it was wise a century ago to allow government “the largest legislative discretion” to deal with “the special exigencies of the moment,” Mugler, 123 U. S., at 669, it is imperative to do so today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.5
The Court‘s categorical approach rule will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental regulation. As this case—in which the claims of an individual property owner exceed $1 million—well demonstrates, these officials face both substantial uncertainty because of the ad hoc nature of takings law and unacceptable penalties if they guess incorrectly about that law.6
III
It is well established that a takings case “entails inquiry into [several factors:] the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations.” PruneYard, 447 U. S., at 83. The Court‘s analysis today focuses on the last two of these three factors: The categorical rule addresses a regulation‘s “economic impact,” while the nuisance exception recognizes that ownership brings with it only certain “expectations.” Neglected by the Court today is the first and, in some ways, the most important factor in takings analysis: the character of the regulatory action.
The Just Compensation Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. Accordingly, one of the central concerns of our takings jurisprudence is “prevent[ing] the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Navigation Co. v. United States,
For example, in the case of so-called “developmental exactions,” we have paid special attention to the risk that particular landowners might “b[e] singled out to bear the burden” of a broader problem not of his own making. Nollan, 483 U. S., at 835, n. 4; see also Pennell v. San Jose, 485 U. S. 1, 23 (1988). Similarly, in distinguishing between the Kohler Act (at issue in Mahon) and the Subsidence Act (at issue in Keystone), we found significant that the regulatory function of the latter was substantially broader. Unlike the Kohler
The presumption that a permanent physical occupation, no matter how slight, effects a taking is wholly consistent with this principle. A physical taking entails a certain amount of “singling out.”8 Consistent with this principle, physical occupations by third parties are more likely to effect takings than other physical occupations. Thus, a regulation requiring the installation of a junction box owned by a third party, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), is more troubling than a regulation requiring the installation of sprinklers or smoke detectors; just as an order granting third parties access to a marina, Kaiser Aetna v. United States, 444 U. S. 164 (1979), is more troubling than an order requiring the placement of safety buoys in the marina.
In analyzing takings claims, courts have long recognized the difference between a regulation that targets one or two parcels of land and a regulation that enforces a statewide policy. See, e. g., A. A. Profiles, Inc. v. Ft. Lauderdale, 850 F. 2d 1483, 1488 (CA11 1988); Wheeler v. Pleasant Grove, 664 F. 2d 99, 100 (CA5 1981); Trustees Under Will of Pomeroy v. Westlake, 357 So. 2d 1299, 1304 (La. App. 1978); see also Burrows v. Keene, 121 N. H. 590, 596, 432 A. 2d 15, 21 (1981); Herman Glick Realty Co. v. St. Louis County, 545 S. W. 2d 320, 324-325 (Mo. App. 1976); Huttig v. Richmond Heights,
In considering Lucas’ claim, the generality of the Beachfront Management Act is significant. The Act does not target particular landowners, but rather regulates the use of the coastline of the entire State. See
Admittedly, the economic impact of this regulation is dramatic and petitioner‘s investment-backed expectations are substantial. Yet, if anything, the costs to and expectations of the owners of developed land are even greater: I doubt, however, that the cost to owners of developed land of renourishing the beach and allowing their seawalls to deteriorate effects a taking. The costs imposed on the owners of undeveloped land, such as petitioner, differ from these costs only in degree, not in kind.
The impact of the ban on developmental uses must also be viewed in light of the purposes of the Act. The legislature stated the purposes of the Act as “protect[ing], preserv[ing], restor[ing] and enhanc[ing] the beach/dune system” of the State not only for recreational and ecological purposes, but also to “protec[t] life and property.”
In view of all of these factors, even assuming that petitioner‘s property was rendered valueless, the risk inherent in investments of the sort made by petitioner, the generality of the Act, and the compelling purpose motivating the South
Accordingly, I respectfully dissent.
Statement of JUSTICE SOUTER.
I would dismiss the writ of certiorari in this case as having been granted improvidently. After briefing and argument it is abundantly clear that an unreviewable assumption on which this case comes to us is both questionable as a conclusion of Fifth Amendment law and sufficient to frustrate the Court‘s ability to render certain the legal premises on which its holding rests.
The petition for review was granted on the assumption that the State by regulation had deprived the owner of his entire economic interest in the subject property. Such was the state trial court‘s conclusion, which the State Supreme Court did not review. It is apparent now that in light of our prior cases, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 493-502 (1987); Andrus v. Allard, 444 U. S. 51, 65-66 (1979); Penn Central Transportation Corp. v. New York City, 438 U. S. 104, 130-131 (1978), the trial court‘s conclusion is highly questionable. While the respondent now wishes to contest the point, see Brief for Respondent 45-50, the Court is certainly right to refuse to take up the issue, which is not fairly included within the question presented, and has received only the most superficial and one-sided treatment before us.
Because the questionable conclusion of total deprivation cannot be reviewed, the Court is precluded from attempting to clarify the concept of total (and, in the Court‘s view, categorically compensable) taking on which it rests, a concept which the Court describes, see ante, at 1016-1017, n. 6, as so uncertain under existing law as to have fostered inconsistent pronouncements by the Court itself. Because that concept is left uncertain, so is the significance of the exceptions to the compensation requirement that the Court proceeds to recog
The imprudence of proceeding to the merits in spite of these unpromising circumstances is underscored by the fact that, in doing so, the Court cannot help but assume something about the scope of the uncertain concept of total deprivation, even when it is barred from explicating total deprivation directly. Thus, when the Court concludes that the application of nuisance law provides an exception to the general rule that complete denial of economically beneficial use of property amounts to a compensable taking, the Court will be understood to suggest (if it does not assume) that there are in fact circumstances in which state-law nuisance abatement may amount to a denial of all beneficial land use as that concept is to be employed in our takings jurisprudence under the Fifth and Fourteenth Amendments. The nature of nuisance law, however, indicates that application of a regulation defensible on grounds of nuisance prevention or abatement will quite probably not amount to a complete deprivation in fact. The nuisance enquiry focuses on conduct, not on the character of the property on which that conduct is performed, see 4 Restatement (Second) of Torts § 821B (1979) (public nuisance); id., § 822 (private nuisance), and the remedies for such conduct usually leave the property owner with other reasonable uses of his property, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 90 (5th ed. 1984) (public nuisances usually remedied by criminal prosecution or abatement), id., § 89 (private nuisances usually remedied by damages, injunction, or abatement); see also, e. g., Mugler v. Kansas, 123 U. S. 623, 668-669 (1887) (prohibition on use of property to manufacture intoxicating beverages “does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use . . . for certain forbidden purposes, is prejudicial to the public interests“); Hadacheck v. Sebastian,
The upshot is that the issue of what constitutes a total deprivation is being addressed by indirection, and with uncertain results, in the Court‘s treatment of defenses to compensation claims. While the issue of what constitutes total deprivation deserves the Court‘s attention, as does the relationship between nuisance abatement and such total deprivation, the Court should confront these matters directly. Because it can neither do so in this case, nor skip over those preliminary issues and deal independently with defenses to the Court‘s categorical compensation rule, the Court should dismiss the instant writ and await an opportunity to face the total deprivation question squarely. Under these circumstances, I believe it proper for me to vote to dismiss the writ, despite the Court‘s contrary preference. See, e. g., Welsh v. Wisconsin, 466 U. S. 740, 755 (1984) (Burger, C. J.); United States v. Shannon, 342 U. S. 288, 294 (1952) (Frankfurter, J.).
Notes
This highlights a fundamental weakness in the Court‘s analysis: its failure to explain why only the impairment of “economically beneficial or productive use,” ante, at 1015 (emphasis added), of property is relevant in takings analysis. I should think that a regulation arbitrarily prohibiting an owner from continuing to use her property for bird watching or sunbathing might constitute 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 cognizable under the Constitution are developmental uses.
An analogous concern arises in First Amendment law. There we have recognized that an individual‘s rights are not violated when his religious practices are prohibited under a neutral law of general applicability. For example, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 879-880 (1990), we observed:
“[Our] decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ United States v. Lee, 455 U. S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment). . . . In Prince v. Massachusetts, 321 U. S. 158 (1944), we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in ‘excluding [these children] from doing there what no other children may do.’ Id., at 171. In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), we upheld Sunday-closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U. S. 437, 461 (1971), we sustained the military Selective Service System against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.”
If such a neutral law of general applicability may severely burden constitutionally protected interests in liberty, a comparable burden on property owners should not be considered unreasonably onerous.