Harry Blackmun

“ 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. ”

“ IV B 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." ”

“ Indeed, it would be extraordinary to construe the Constitution to require a government to compensate private landowners because it denied them "the right" to use property which cannot be used without risking injury and death. ”

“ 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 Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce [p1040] it. ”

“ But the conclusion that a regulation is not, on its face, a taking because it allows the landowner some economic use of property is a far cry from the proposition that denial of such use is sufficient to establish a taking claim regardless of any other consideration. The Court never has accepted the latter proposition. ”

“ IV 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." ”

“ 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 [p1047] prohibit is a background common law nuisance or property principle. ”

“ 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. ”

“ If one fact about the Court's taking 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. ”

“ 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. § 48-39-250 (1) (a) . The General Assembly also found that
development unwisely has been sited too close to the [beach/dune] system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property. ”

“ 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." ”

“ The Court creates its new taking jurisprudence based on the trial court's finding that the property [p1044] had lost all economic value. [6] This finding is almost certainly erroneous. Petitioner still can enjoy other attributes of ownership, such as the right to exclude others, "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) . Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer. ”

“ 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 determine [p1053] what measures would be appropriate for the protection of public health and safety. ”

“ Most state courts agreed with this narrow interpretation of a taking. "Until the end of the nineteenth century . . . , jurists held that [p1058] the constitution protected possession only, and not value." Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S.Cal.L.Rev. 1, 76 (1986) ; Bosselman 106. Even indirect and consequential injuries to property resulting from regulations were excluded from the definition of a taking. ”

“ 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 Council, and the construction of any habitable structure was prohibited. ”

“ The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute, 79 Cal.L.Rev. 205, 212-213 (1991) . The beachfront buildings are not only themselves destroyed in such a storm, "but they are often driven, like battering rams, into adjacent inland homes." Ibid. Moreover, the development often destroys the natural sand dune barriers that provide storm breaks. Ibid.
↑ . The setback line was determined by calculating the distance landward from the crest of an ideal oceanfront sand dune which is forty times the annual erosion rate. ”

“ The other cases cited by the Court, ante at 1015, repeat the Agins sentence, but in no way suggest that the public interest is irrelevant if total value has been taken. The Court has indicated that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial taking challenge. ”

“ This Court explicitly acknowledged in Hadacheck that
[a] vested interest cannot be asserted against [the police power] because of conditions once obtaining. To so hold would preclude development and fix a city forever in its primitive conditions. 239 U.S. at 410 (citation omitted) .
↑ . The Court argues that finding no taking when the legislature prohibits a harmful use, such as the Court did in Mugler and the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania Coal. ”

“ The Court's references to "common law" background principles, however, indicate that legislative determinations do not constitute "state nuisance and property law" for the Court.
↑ . Also, until today, the fact that the regulation prohibited uses that were lawful at the time the owner purchased did not determine the constitutional question. The brewery, the brickyard, the cedar trees, and the gravel pit were all perfectly legitimate uses prior to the passage of the regulation. See Mugler v. Kansas, 123 U.S. 623, 654 (1887) ; Hadacheck v. Los Angeles, 239 U.S. 394 (1915) ”