Antonin Scalia

“ When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole. ”

“ 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. ”

“ In reality, these hard structures, in many instances, have increased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry. (6) Erosion is a natural process which becomes a significant problem for man only when structures are erected in close proximity to the beach/dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. ”

“ Without even so much as commenting upon the consequences of the South Carolina Supreme Court's judgment in this respect, the Council insists that permitting Lucas to press his claim of a past deprivation on this appeal would be improper, since "the issues of whether and to what extent [Lucas] has incurred a temporary taking . . . have simply never been addressed." ”

“ 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." ”

“ When, however, a regulation that declares "off limits" all economically productive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it. ”

“ JUSTICE STEVENS criticizes the "deprivation of all economically beneficial use" rule as "wholly arbitrary", in that " [the] landowner whose property is diminished in value 95% recovers nothing," while the landowner who suffers a complete elimination of value "recovers the land's full value." Post at 1064. This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation. ”

“ Characteristic of its nature is his assertion that the cases we discuss here stand merely for the proposition
that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial taking challenge and not for the point that "denial of such use is sufficient to establish a taking claim regardless of any other consideration." ”

“ The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armoring devices have given a false sense of security to beachfront property owners. ”

“ 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. ”

“ It seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; " [a] s long recognized, some values are enjoyed under an implied limitation, and must yield to the police power." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 413. ”

“ 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. ”

“ 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' lots. § 48-39-280 (A) (2) (Supp.1988) . [1] In action not challenged here, the Council fixed this baseline landward of Lucas' parcels. That was significant, for under the Act, [p1009] construction of occupiable improvements [2] was flatly prohibited seaward of a line drawn 20 feet landward of, and parallel to, the baseline, § 48-39290 (A) (Supp.1988) . ”

“ JUSTICE BLACKMUN, however, apparently insists that we must make the outcome hinge (exclusively) upon the South Carolina Legislature's other, "harm-preventing" characterizations, focusing on the declaration that
prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion. ”

“ Whether one or the other of the competing characterizations will come to one's lips in a particular case depends primarily upon one's evaluation of the worth of competing uses of real estate. See Restatement (Second) of Torts § 822, Comment 9, p. 112 (1979) (" [p] ractically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference") . ”

“ The many statutes on the books, both state and federal, that [p1019] provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation. See, e.g., 16 U.S.C. § 410ff-1 (a) (authorizing acquisition of "lands, waters, or interests [within Channel Islands National Park] (including but not limited to scenic easements) ") ”

“ JUSTICE BLACKMUN describes that rule (which we do not invent, but merely apply, today) as "alter [ing] the long-settled rules of review" by foisting on the State "the burden of showing [its] regulation is not a taking." Post at 1045, 1046. This is, of course, wrong. Lucas had to do more than simply file a lawsuit to establish his constitutional entitlement; he had to show that the Beachfront Management Act denied him economically beneficial use of his land. ”

“ 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' 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' 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. ”