John Paul Stevens

“ Today, however, the Court suggests that a regulation may effect a total taking of any real property interest. See ante at 1017, n. 7.
↑ . Even measured in terms of efficiency, the Court's rule is unsound. The Court today effectively establishes a form of insurance against certain changes in land use regulations. Like other forms of insurance, the Court's rule creates a "moral hazard" and inefficiencies: in the face of uncertainty about changes in the law, developers will overinvest, safe in the knowledge that, if the law changes adversely, they will be entitled to compensation. ”

“ Viewed more broadly, the Court's new rule and exception conflict with the very character of our takings jurisprudence. We have frequently and consistently recognized that the definition of a taking cannot be reduced to a "set formula," and that determining whether a regulation is a taking is "essentially [an] ad hoc, factual inquir [y] ." ”

“ 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 [p1066] allows only single-family homes would render the investor's property interest "valueless." ”

“ 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. 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. ”

“ This generality indicates that the Act is not an effort to expropriate owners of undeveloped land.
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 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. ”

“ 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. ”

“ 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) . ”

“ 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 diminution [p1064] [of value.] So the question depends upon the particular facts. Id. ”