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31160187 Property Law Outline

31160187 Property Law Outline

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Published by Yin Huang

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Published by: Yin Huang on Oct 22, 2011
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20.5.1 Overview

Lucas (P) sued after the South Carolina Coastal Council (“the Council”) (D)

declared that he could no longer build any house on beachfront property he



20.5.2 Facts

Lucas had purchased two beachfront lots with the intention of building res-

idential homes thereon. After he bought the land, South Carolina enacted

a statute whose effect was to prohibit any development on that land. The

purpose of the statute was to prevent erosion of the coastline. Lucas sued on

the theory that the legislation amounted to a taking of the land. The trial

court found that the new law had indeed deprived him of any profitable use

of the land.

20.5.3 Issue

Does the prohibition on development amount to a taking?

20.5.4 Holding

The prohibition amounts to a taking.

20.5.5 Reasoning

Although the police power allows the government to regulate the use of prop-

erty within broad limits, the law has consistently recognized two situations

in which such regulation amounts to a taking. A taking occurs when the

government either (1) physical occupies the property or (2) imposes regu-

lations so as to deprive the owner of all economically beneficial uses of the

property. Here, there is no question that Lucas has suffered a taking of the

second type. The South Carolina courts concluded too hastily that the re-

strictions imposed upon Lucas were intended to prevent a “noxious” use of

the property and therefore required no compensation. It does not matter

whether South Carolina attempts to characterize the taking as prevention of

harm or promotion of the public good; which of these two terms is applied

often depends on subjective value judgments that have no bearing on the

taking itself. Rather, all that matters is that South Carolina has deprived

Lucas of the ability to use his land in such a way that was not prohibited by

“background principles.”

Justice Kennedy, concurring in the judgment. Although the result

in this case is correct, it does not necessarily follow that such regulation


of coastal land would be inappropriate in all cases. Government should be

allowed greater leeway to determine what kinds of restrictions are necessary.

Justice Blackmun, dissenting. The majority offers up the justification

of “background principles” without any explanation as to where it got any

of these principles. If anything, the historical view opposes that adopted by

the majority. In the past, state governments had great leeway in dictating

the uses of land, especially in the case of undeveloped land. Current law, by

contrast, allows compensation for regulatory takings but also allows the state

to determine what kinds of regulations are necessary. By trying to charac-

terize common-law nuisance as a limitation on regulations, the majority has

merely cherry-picked the doctrines most favorable to its position.

Justice Stevens, dissenting. The majority has created a bizarre situa-

tion in which an owner who is deprived of 95% of the value of his land is

entitled to no compensation at all whereas one who is deprived of 100% of

the value receives full compensation. This result is likely to create perverse

incentives. Purchasers of land might be tempted to maximize their chance of

recovering for a regulatory taking by defining their property rights narrowly,

so that any regulation is more likely to effect a “total” taking with respect to

those rights. By contrast, the government is likely to favor an expansion of

property rights, so that even significant regulatory takings will not amount

to compensable “total” takings as long as some sliver of rights remains un-

touched. Apart from these concerns, the majority has also limited the ability

of state legislatures to enact regulations for the public good. There is no ev-

idence that the regulation in question was targeted specifically at Lucas or a

specific set of landowners; rather, it was a statewide initiative affecting both

undeveloped and developed land. If the owners of developed land have no

right to complain about the restrictions, then it would seem that an owner

of undeveloped land would have a fortiori even less reason to complain.

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