lucas south carolina coastal council argued march decided june petitioner lucas bought two residential lots south carolina barrier island intending build homes immediately adjacent parcels time lucas lots subject state coastal zone building permit requirements however state legislature enacted beachfront management act barred lucas erecting permanent habitable structures parcels filed suit respondent state agency contending even though act may lawful exercise state police power ban construction deprived economically viable use property therefore effected taking fifth fourteenth amendments required payment compensation see agins city tiburon state trial agreed finding ban rendered lucas parcels valueless entered award exceeding million reversing state held bound light lucas failure attack act validity accept legislature uncontested findings new construction coastal zone threatened valuable public resource ruled mugler kansas line cases regulation designed prevent harmful noxious uses property akin public nuisances compensation owing takings clause regardless regulation effect property value held lucas takings claim rendered unripe fact may yet able secure special permit build property amendment act passed briefing argument state prior issuance opinion declined rest judgment ripeness grounds preferring dispose case merits latter decision precludes practically legally takings claim respect lucas preamendment deprivation lucas properly alleged injury fact respect preamendment deprivation accord sound process circumstances insist pursue procedure component takings claim considered ripe pp state erred applying harmful noxious uses principle decide case pp regulations deny property owner economically viable use land constitute one discrete categories regulatory deprivations require compensation without usual inquiry public interest advanced support restraint although never set forth justification categorical rule practical economic equivalence physically appropriating eliminating beneficial use land counsels preservation pp review relevant decisions demonstrates harmful noxious use principle merely early formulation police power justification necessary sustain without compensation regulatory diminution value distinction regulation prevents harmful use confers benefits difficult impossible discern objective basis therefore logic basis departing categorical rule total regulatory takings must compensated pp rather question must turn accord takings jurisprudence citizens historic understandings regarding content state power bundle rights acquire take title property consistent historical compact embodied takings clause title real estate held subject state subsequent decision eliminate economically beneficial use regulation effect newly decreed sustained without compensation paid owner however compensation owed setting takings claims state affirmative decree simply makes explicit already inheres title restrictions background principles state law property nuisance already place upon land ownership cf scranton wheeler pp although seems unlikely common law principles prevented erection habitable productive improvements lucas land state law question must dealt remand win case respondent simply proffer legislature declaration uses lucas desires inconsistent public interest conclusory assertion violate common law maxim sic utere tuo ut alienum non laedas must identify background principles nuisance property law prohibit uses lucas intends property present circumstances scalia delivered opinion rehnquist white thomas joined kennedy filed opinion concurring judgment post blackmun post stevens post filed dissenting opinions souter filed separate statement post camden lewis argued cause petitioner briefs gerald finkel david bederman harness iii argued cause respondent brief travis medlock attorney general south carolina kenneth woodington senior assistant attorney general richard lazarus briefs amici curiae urging reversal filed solicitor general starr acting assistant attorney general hartman deputy solicitor general wallace deputy assistant attorney general clegg acting deputy assistant attorney general cohen edwin kneedler peter steenland james brookshire john bryson martin matzen senator steve symms et al peter dickson howard shapiro eric hultman american farm bureau federation et al james holzhauer clifford sloan timothy bishop john rademacher richard krause american mining congress et al george miller walter smith stuart sanderson william hynan robert kirshner chamber commerce america stephen bokat robin conrad herbert fenster tami lyn azorsky defenders property rights et al nancy marzulla fire island association bernard meyer institute justice richard epstein william mellor iii clint bolick jonathan emord long beach island oceanfront homeowners association et al theodore carlson mountain legal foundation et al william perry pendley national association home builders et al michael berger william ethier nemours foundation john mullenholz northern virginia chapter national association industrial office parks et al john holland foote john cahill pacific legal foundation ronald zumbrun edward connor radford south carolina policy council education foundation et al stephen parker briefs amici curiae urging affirmance filed state california daniel lungren attorney general roderick walston chief assistant attorney general jan stevens assistant attorney general richard frank craig thompson supervising deputy attorneys general maria dante brown virna santos deputy attorneys general state florida et al robert butterworth attorney general florida lewis hubener assistant attorney general james evans attorney general alabama richard blumenthal attorney general connecticut charles oberly iii attorney general delaware michael bowers attorney general georgia elizabeth attorney general guam warren price attorney general hawaii bonnie campbell attorney general iowa michael carpenter attorney general maine joseph curran attorney general maryland scott harshbarger attorney general massachusetts frank kelley attorney general michigan hubert humphrey iii attorney general minnesota frankie sue del papa attorney general nevada robert del tufo attorney general new jersey john arnold attorney general new hampshire tom udall attorney general new mexico robert abrams attorney general new york jerry boone solicitor general lacy thornburg attorney general north carolina charles crookham attorney general oregon ernest preate attorney general pennsylvania jorges attorney puerto rico james attorney general rhode island paul van dam attorney general utah jeffrey amestoy attorney general vermont james doyle attorney general wisconsin dan morales attorney general texas brian goldman broward county et al john copelan herbert thiele hamilton rice california cities counties robin faisant gary ragghianti manuela albuquerque thomas caporael william camil scott howard roger picquet joseph barron david erwin charles williams john calhoun robert booth anthony alperin leland jordan john cook jayne williams gary gillig dave larsen kircher jean leonard harris michael dean john witt alan sumption joan gallo george rios daniel hentschke joseph lawrence peter bulens thomas haas nueces county texas et al peter berle glenn sugameli ann powers zygmunt plater american planning association et al bissel carey iii gary owen members national growth management leadership project john humbach municipal art society new york william hegarty michael gruen philip howard norman marcus philip weinberg national trust historic preservation lloyd cutler louis cohen david johnson peter hutt ii jerold kayden david doheny elizabeth merritt sierra club et al lawrence minch laurens silver charles chambers conference mayors et al richard ruda michael dzialo barbara etkind briefs amici curiae filed national association realtors ralph holmen washington legal foundation daniel popeo paul kamenar justice scalia delivered opinion petitioner david lucas paid two residential lots isle palms charleston county south carolina intended build homes however south carolina legislature enacted beachfront management act ann et seq supp direct effect barring petitioner erecting permanent habitable structures two parcels see state trial found prohibition rendered lucas parcels valueless app pet cert case requires us decide whether act dramatic effect economic value lucas lots accomplished taking private property fifth fourteenth amendments requiring payment compensation amdt south carolina expressed interest intensively managing development activities coastal zone dates aftermath congress passage federal coastal zone management act stat amended et legislature enacted coastal zone management act see ann et seq original form south carolina act required owners coastal zone land qualified critical area defined legislation include beaches immediately adjacent sand dunes obtain permit newly created south carolina coastal council respondent prior committing land use use critical area devoted september late lucas others began extensive residential development isle palms barrier island situated eastward city charleston toward close development cycle one residential subdivision known beachwood east lucas purchased two lots issue litigation account portion lots located approximately feet beach qualified critical area act accordingly time lucas acquired parcels legally obliged obtain permit council advance development activity intention respect lots owners immediately adjacent parcels already done erect residences commissioned architectural drawings purpose beachfront management act brought lucas plans abrupt end legislation council directed establish baseline connecting point erosion past forty years region isle palms includes lucas lots ann supp action challenged council fixed baseline landward lucas parcels significant act construction occupable improvements flatly prohibited seaward line drawn feet landward parallel baseline act provided exceptions lucas promptly filed suit south carolina common pleas contending beachfront management act construction bar effected taking property without compensation lucas take issue validity act lawful exercise south carolina police power contended act complete extinguishment property value entitled compensation regardless whether legislature acted furtherance legitimate police power objectives following bench trial agreed among factual determinations finding time lucas purchased two lots zoned residential construction restrictions imposed upon use property either state south carolina county charleston town isle palms app pet cert trial found beachfront management act decreed permanent ban construction insofar lucas lots concerned prohibition deprive lucas reasonable economic use lots eliminated unrestricted right use render ed valueless thus concluded lucas properties taken operation act ordered respondent pay compensation amount south carolina reversed found dispositive described lucas concession beachfront management act properly validly designed preserve south carolina beaches failing attack validity statute believed bound accept uncontested findings south carolina legislature new construction coastal zone petitioner intended threatened public resource ruled regulation respecting use property designed prevent serious public harm citing inter alia mugler kansas compensation owing takings clause regardless regulation effect property value two justices dissented acknowledged mugler line cases recognizes governmental power prohibit noxious uses property uses property akin public nuisances without pay compensation characterized beachfront management act primary purpose prevention nuisance harwell dissenting dissenters chief purposes legislation among promotion tourism creation habitat indigenous flora fauna fairly compared nuisance abatement consequence affirmed trial conclusion act obliteration value petitioner lots accomplished taking granted certiorari ii threshold matter must briefly address council suggestion case inappropriate plenary review briefing argument south carolina prior issuance opinion beachfront management act amended authorize council certain circumstances issue special permits construction reconstruction habitable structures seaward baseline see ann supp according council amendment renders lucas claim permanent deprivation unripe lucas may yet able secure permission build property cases reminded uniformly reflect insistence knowing nature extent permitted development adjudicating constitutionality regulations purport limit macdonald sommer frates yolo county see also agins city tiburon petitioner yet obtained final decision regarding allowed develop property williamson county regional planning hamilton bank johnson city council argues yet entitled definitive adjudication takings claim think considerations preclude review south carolina rested judgment ripeness grounds essentially invited council see brief respondent south carolina shrugged possibility administrative trial proceedings however preferring dispose lucas takings claim merits san diego gas electric city san diego unusual disposition preclude lucas applying permit amendment future construction challenging takings grounds denial preclude practically legally takings claim respect lucas past deprivation denied construction rights period amendment see generally first english evangelical lutheran church glendale county los angeles holding temporary deprivations use compensable takings clause without even much commenting upon consequences south carolina judgment respect council insists permitting lucas press claim past deprivation appeal improper since issues whether extent lucas incurred temporary taking simply never addressed brief respondent yet lucas reason proceed temporary taking theory trial even seek remand purpose prior submission case south carolina since act read taking unconditional permanent moreover given breadth south carolina holding judgment lucas plainly unable absent intervention obtain state adjudication respect period circumstances think accord sound process insist lucas pursue special permit procedure takings claim considered ripe lucas properly alleged article iii injury fact case respect constraints placed use parcels beachfront management act discretionary special permit procedure may regain future least beneficial use land goes prudential ripeness lucas challenge reasons discussed think prudent apply prudential requirement see esposito south carolina coastal council cert denied leave decision remand course questions left unaddressed south carolina consequence categorical disposition iii prior justice holmes exposition pennsylvania coal mahon generally thought takings clause reached direct appropriation property legal tender cases wall functional equivalent practical ouster owner possession transportation chicago see also gibson justice holmes recognized mahon however protection physical appropriations private property meaningfully enforced government power redefine range interests included ownership property necessarily constrained constitutional limits instead uses private property subject unbridled uncompensated qualification police power natural tendency human nature extend qualification last private property disappear ed considerations gave birth case maxim property may regulated certain extent regulation goes far recognized taking ibid nevertheless decision mahon offered little insight circumstances given regulation seen going far purposes fifth amendment years succeeding regulatory takings jurisprudence generally eschewed set formula determining far far preferring engag essentially ad hoc factual inquiries penn central transportation new york city quoting goldblatt hempstead see epstein takings descent resurrection rev however described least two discrete categories regulatory action compensable without inquiry public interest advanced support restraint first encompasses regulations compel property owner suffer physical invasion property general least regard permanent invasions matter minute intrusion matter weighty public purpose behind required compensation example loretto teleprompter manhattan catv determined new york law requiring landlords allow television cable companies emplace cable facilities apartment buildings constituted taking even though facilities occupied cubic feet landlords property see see also causby physical invasions airspace cf kaiser aetna imposition navigational servitude upon private marina second situation found categorical treatment appropriate regulation denies economically beneficial productive use land see agins see also nollan california coastal keystone bituminous coal assn debenedictis hodel virginia surface mining reclamation said numerous occasions fifth amendment violated land use regulation substantially advance legitimate state interests denies owner economically viable use land agins supra citations omitted emphasis added never set forth justification rule perhaps simply justice brennan suggested total deprivation beneficial use landowner point view equivalent physical appropriation see san diego gas electric san diego dissenting opinion land profit thereof coke institutes ch ed surely least extraordinary circumstance productive economically beneficial use land permitted less realistic indulge usual assumption legislature simply adjusting benefits burdens economic life penn central transportation manner secures average reciprocity advantage everyone concerned pennsylvania coal mahon functional basis permitting government regulation affect property values without compensation government hardly go extent values incident property diminished without paying every change general law apply relatively rare situations government deprived landowner economically beneficial uses side balance affirmatively supporting compensation requirement fact regulations leave owner land without economically beneficial productive options use typically requiring land left substantially natural state carry heightened risk private property pressed form public service guise mitigating serious public harm see annicelli south kingstown prohibition construction adjacent beach justified twin grounds safety conservation open space morris county land improvement hills township prohibition filling marshlands imposed order preserve region water detention basin create wildlife refuge justice brennan explained government point view benefits flowing public preservation open space regulation may equally great creating wildlife refuge formal condemnation increasing electricity production dam project floods private property san diego gas elec supra dissenting opinion many statutes books state federal provide use eminent domain impose servitudes private scenic lands preventing developmental uses acquire lands altogether suggest practical equivalence setting negative regulation appropriation see authorizing acquisition lands waters interests within channel islands national park including limited scenic easements authorizing acquisition lands lesser interests therein including mineral interests scenic easements within sawtooth national recreation area authorizing acquisition wetlands authorizing acquisition inter alia scenic easements within north carolina natural scenic rivers system code ann authorizing acquisition protective easements rights real property adjacent state historic architectural archaeological cultural resources think short good reasons frequently expressed belief owner real property called upon sacrifice economically beneficial uses name common good leave property economically idle suffered taking trial found lucas two beachfront lots rendered valueless respondent enforcement construction ban lucas theory case rested upon economically viable use statements finding entitled compensation lucas believed unnecessary take issue either purposes behind beachfront management act means chosen south carolina legislature effectuate purposes south carolina however thought otherwise view beachfront management act ordinary enactment involved exercise south carolina police powers mitigate harm public interest petitioner use land might occasion neglecting dispute findings enumerated act otherwise challenge legislature purposes petitioner concede area south carolina shores extremely valuable public resource erection new construction inter alia contributes erosion destruction public resource discouraging new construction close proximity dune area necessary prevent great public harm view concessions brought petitioner challenge within long line cases sustaining due process takings clause challenges state use police powers enjoin property owner activities akin public nuisances see mugler kansas law prohibiting manufacture alcoholic beverages hadacheck sebastian law barring operation brick mill residential area miller schoene order destroy diseased cedar trees prevent infection nearby orchards goldblatt hempstead law effectively preventing continued operation quarry residential area correct many prior opinions suggested harmful noxious uses property may proscribed government regulation without requirement compensation number reasons however think south carolina quick conclude principle decides present case harmful noxious uses principle early attempt describe theoretical terms government may consistent takings clause affect property values regulation without incurring obligation compensate reality nowadays acknowledge explicitly respect full scope state police power see penn central transportation state reasonably conclude health safety morals general welfare promoted prohibiting particular contemplated uses land compensation need accompany prohibition see also nollan california coastal cases elaborated standards determining constitutes legitimate state interest hey made clear broad range governmental purposes regulations satisfy requirements made point penn central transportation course sustaining new york city landmarks preservation program takings challenge rejected petitioner suggestion mugler cases following premised thus limited objective conception noxiousness uses issue hadacheck miller goldblatt perfectly lawful involved blameworthiness moral wrongdoing conscious act dangerous induce society shift cost pa rt icular individual sax takings police power yale cases better understood resting supposed noxious quality prohibited uses rather ground restrictions reasonably related implementation policy unlike historic preservation expected produce widespread public benefit applicable similarly situated property harmful noxious use analysis words simply progenitor contemporary statements land use regulation effect taking substantially advance legitimate state interests nollan supra quoting agins tiburon see also penn central transportation supra euclid ambler realty understood prevention harmful use merely early formulation police power justification necessary sustain without compensation regulatory diminution value distinction regulation prevents harmful use confers benefits difficult impossible discern objective basis becomes logic serve touchstone distinguish regulatory takings require compensation regulatory deprivations require compensation fortiori legislature recitation justification basis departing categorical rule total regulatory takings must compensated departure virtually always allowed south carolina approach essentially nullify mahon affirmation limits noncompensable exercise police power cases provide support none employed logic harmful use prevention sustain regulation involved allegation regulation wholly eliminated value claimant land see keystone bituminous coal rehnquist dissenting state seeks sustain regulation deprives land economically beneficial use think may resist compensation logically antecedent inquiry nature owner estate shows proscribed use interests part title begin accords think takings jurisprudence traditionally guided understandings citizens regarding content state power bundle rights acquire obtain title property seems us property owner necessarily expects uses property restricted time time various measures newly enacted state legitimate exercise police powers long recognized values enjoyed implied limitation must yield police power pennsylvania coal mahon case personal property reason state traditionally high degree control commercial dealings aware possibility new regulation might even render property economically worthless least property economically productive use sale manufacture sale see andrus allard prohibition sale eagle feathers case land however think notion pressed council title somehow held subject implied limitation state may subsequently eliminate economically valuable use inconsistent historical compact recorded takings clause become part constitutional culture permanent physical occupation land concerned refused allow government decree anew without compensation matter weighty asserted public interests involved loretto teleprompter manhattan catv though assuredly permit government assert permanent easement limitation upon landowner title compare scranton wheeler interests riparian owner submerged lands bordering public navigable water held subject government navigational servitude kaiser aetna imposition navigational servitude marina created rendered navigable private expense held constitute taking believe similar treatment must accorded confiscatory regulations regulations prohibit economically beneficial use land limitation severe newly legislated decreed without compensation must inhere title restrictions background principles state law property nuisance already place upon land ownership law decree effect must words duplicate result achieved courts adjacent landowners uniquely affected persons state law private nuisance state complementary power abate nuisances affect public generally otherwise analysis owner lakebed example entitled compensation denied requisite permit engage landfilling operation effect flooding others land corporate owner nuclear generating plant directed remove improvements land upon discovery plant sits astride earthquake fault regulatory action may well effect eliminating land economically productive use proscribe productive use previously permissible relevant property nuisance principles use properties expressly prohibited purposes always unlawful subject constitutional limitations open state point make implication background principles nuisance property law explicit see michelman property utility fairness comments ethical foundations compensation law light traditional resort existing rules understandings stem independent source state law define range interests qualify protection property fifth fourteenth amendments board regents state colleges roth see ruckelshaus monsanto hughes washington stewart concurring recognition takings clause require compensation owner barred putting land use proscribed existing rules understandings surely unexceptional however regulation declares limits economically productive beneficial uses land goes beyond relevant background principles dictate compensation must paid sustain total taking inquiry require today ordinarily entail application state nuisance law ordinarily entails analysis among things degree harm public lands resources adjacent private property posed claimant proposed activities see restatement second torts social value claimant activities suitability locality question see relative ease alleged harm avoided measures taken claimant government adjacent private landowners alike see fact particular use long engaged similarly situated owners ordinarily imports lack common law prohibition though changed circumstances new knowledge may make previously permissible longer see comment also fact landowners similarly situated permitted continue use denied claimant seems unlikely common law principles prevented erection habitable productive improvements petitioner land rarely support prohibition essential use land curtin benson question however one state law dealt remand emphasize win case south carolina must proffer legislature declaration uses lucas desires inconsistent public interest conclusory assertion violate common law maxim sic utere tuo ut alienum non laedas said state ipse dixit may transform private property public property without compensation webb fabulous pharmacies beckwith instead required sought restrain lucas common law action public nuisance south carolina must identify background principles nuisance property law prohibit uses intends circumstances property presently found showing state fairly claim proscribing beneficial uses beachfront management act taking nothing ordered footnotes act allow construction certain nonhabitable improvements wooden walkways larger width six feet small wooden decks larger one hundred square feet justice blackmun insists aspect lucas claim justiciable post lucas never fulfilled obligation williamson county regional planning hamilton bank johnson city submi plan development property proper state authorities see post submission pointless council stipulated building permit issued act application application record stipulations peculiar posture case mean without article iii jurisdiction justice blackmun apparently believes see post given south carolina dismissive foreclosure pleading adjudication respect component lucas takings claim appropriate us address component case pleadings alone lucas properly alleged injury fact complaint see app pet cert complaint asking damages temporary taking property date act passage time matter finally resolved reasonably demanded cf first english evangelical lutheran church glendale county los angeles justice blackmun finds baffling post grant standing whereas days ago lujan defenders wildlife denied standing sees strong evidence support repeated imputations presses take case post eager decide post unwilling denied post point decisions indeed close time yet one grants standing denies distinction however rests law rather chronology lujan since involved establishment injury fact summary judgment stage required specific facts adduced sworn testimony challenge generalized allegation injury fact made pleading stage unsuccessful case appeals fourth circuit reached merits takings challenge beachfront management act identical one lucas brings even though act amended special permit procedure established case submission observed enactment act pendency appeal provisions special permits changes may affect plaintiffs relieve us need address plaintiffs claims provisions act even amended act cured plaintiffs concerns amendments foreclose possibility taking occurred years act effect esposito south carolina coastal council justice blackmun intense interest lucas plight prudently expressed vacating judgment remanding consideration light amendments beachfront management act post strange suggestion given south carolina rendered categorical disposition case act amended invited consider effect amendments lucas case reason believe justices south carolina desirous using narrower ground neither prudence principle judicial restraint requires remand find whether changed mind attempt respond justice blackmun mistaken citation case precedent characteristic nature assertion cases discuss stand merely proposition proof regulation deny owner economic use property sufficient defeat facial taking challenge point denial use sufficient establish taking claim regardless consideration post cases say repeatedly unmistakably test applied considering facial takings challenge fairly straightforward statute regulating uses made property effects taking denies owner economically viable use land keystone quoting hodel quoting agins emphasis added justice blackmun describes rule invent merely apply today alter ing rules review foisting state burden showing regulation taking post course wrong lucas simply file lawsuit establish constitutional entitlement show beachfront management act denied economically beneficial use land analysis presumes unconstitutionality state land use regulation sense rule exceptions presumes invalidity law violates example rule generally prohibiting restrictions speech see simon schuster members crime victims statute presumptively inconsistent first amendment imposes financial burden speakers content speech justice blackmun real quarrel substantive standard liability apply case standard see need repudiate regrettably rhetorical force deprivation economically feasible use rule greater precision since rule make clear property interest loss value measured example regulation requires developer leave rural tract natural state unclear whether analyze situation one owner deprived economically beneficial use burdened portion tract one owner suffered mere diminution value tract whole extreme think unsupportable view relevant calculus see penn central transportation new york city aff state examined diminution particular parcel value produced municipal ordinance light total value takings claimant holdings vicinity unsurprisingly uncertainty regarding composition denominator deprivation fraction produced inconsistent pronouncements compare pennsylvania coal mahon law restricting subsurface extraction coal held effect taking keystone bituminous coal assn debenedictis nearly identical law held effect taking see also rehnquist dissenting rose mahon reconstructed takings issue still muddle answer difficult question may lie owner reasonable expectations shaped state law property whether degree state law accorded legal recognition protection particular interest land respect takings claimant alleges diminution elimination value event avoid difficulty present case since interest land lucas pleaded fee simple interest estate rich tradition protection common law since south carolina common pleas found beachfront management act left lucas beachfront lots without economic value justice stevens criticizes deprivation economically beneficial use rule wholly arbitrary landowner whose property diminished value recovers nothing landowner suffers complete elimination value recovers land full value post analysis errs assumption landowner whose deprivation one step short complete entitled compensation owner might able claim benefit categorical formulation acknowledged time economic impact regulation claimant extent regulation interfered distinct expectations keenly relevant takings analysis generally penn central transportation new york city true least cases landowner loss get nothing landowner total loss recover full occasional result strange gross disparity landowner whose premises taken highway recovers full landowner whose property reduced former value highway recovers nothing takings law full situations justice stevens similarly misinterprets focus developmental uses property uses proscribed beachfront management act betraying assumption uses property cognizable constitution developmental uses post make assumption though prior takings cases evince abiding concern productive use economic investment land plainly number noneconomic interests land whose impairment invite exceedingly close scrutiny takings clause see loretto teleprompter manhattan catv interest excluding strangers one land finding premise petition certiorari since challenged brief opposition decline entertain argument respondent brief merits see brief respondent finding erroneous instead decide question presented factual assumptions south carolina see oklahoma city tuttle legislature express findings include following general assembly finds system along coast south carolina extremely important lo people state serves following functions protects life property serving storm barrier dissipates wave energy contributes shoreline stability economical effective manner provides basis tourism industry generates approximately south carolina annual tourism industry revenue constitutes significant portion state economy tourists come south carolina coast enjoy ocean dry sand beach contribute significantly state local tax revenues provides habitat numerous species plants animals several threatened endangered waters adjacent system also provide habitat many marine species provides natural health environment citizens south carolina spend leisure time serves physical mental wellbeing system vegetation unique extremely important vitality preservation system many miles south carolina beaches identified critically eroding evelopment unwisely sited close system type development jeopardized stability system accelerated erosion endangered adjacent property public private interests protect system unwise development use armoring form hard erosion control devices seawalls bulkheads protect structures adjacent beach proven effective armoring devices given false sense security beachfront property owners reality hard structures many instances increased vulnerability beachfront property damage wind waves contributing deterioration loss dry sand beach important tourism industry erosion natural process becomes significant problem man structures erected close proximity system public private interests afford system space accrete erode natural cycle space provided discouraging new construction close proximity system encouraging erected structures close system retreat state best interest protect promote increased public access south carolina beaches tourists south carolina residents alike code ann supp present case fact south carolina legislature findings south carolina purported defer characterizing purpose act seem us phrased benefit conferring language instead example describe importance construction ban enhancing south carolina annual tourism industry revenue anno supp provid ing habitat numerous species plants animals several threatened endangered provid ing natural healthy environment citizens south carolina spend leisure time serves physical mental wellbeing pointless make outcome case hang upon terminology since interests readily described fashion justice blackmun however apparently insists must make outcome hinge exclusively upon south carolina legislature characterizations focusing declaration prohibitions building front setback line necessary protect people property storms high tides beach erosion post says othing record undermines assessment apparently seeing significance fact statute permits owners existing structures remain even rebuild structures destroyed beyond repair ann supp fact amendment authorizes council issue permits new construction violation uniform prohibition see ann supp justice blackmun view even respect regulations deprive owner developmental economically beneficial land uses test required compensation whether legislature recited justification action see post since justification formulated practically every case amounts test whether legislature stupid staff think takings clause requires courts insist upon artful characterizations mugler kansas prohibition upon use building brewery uses permitted plymouth coal pennsylvania requirement pillar coal left ground safeguard mine workers mineral rights otherwise exploited reinman little rock declaration livery stable constituted public nuisance uses property permitted hadacheck sebastian prohibition brick manufacturing residential area uses permitted goldblatt hempstead prohibition excavation uses permitted drawing first amendment jurisprudence see employment dept human resources smith justice stevens loo generality regulation property determine whether compensation owing post beachfront management act general view regulates use coastline entire state post may validity principle justice stevens proposes properly apply present case equivalent law general application inhibits practice religion without aimed religion see oregon smith supra law destroys value land without aimed land perhaps law generally applicable criminal prohibition manufacturing alcoholic beverages challenged mugler comes mind constitute compensable taking see regulation specifically directed land use acquires immunity plundering landowners generally law specifically directed religious practice acquire immunity prohibiting religions justice stevens approach renders takings clause little particularized restatement equal protection clause accusing us launch ing missile kill mouse post justice blackmun expends good deal upon noncombatant arguing description understanding land ownership informs takings clause supported early american experience largely true entirely irrelevant practices prior incorporation takings compensation clauses see chicago chicago justice blackmun acknowledges occasionally included outright physical appropriation land without compensation see post accord plausible interpretation provisions justice blackmun correct early constitutional theorists believe takings clause embraced regulations property see post even suggest explicitly least renounce contrary conclusion mahon since text clause read encompass regulatory well physical deprivations contrast text originally proposed madison see speech proposing bill rights june madison papers james madison hobson rutland rachal sisson ed person shall obliged relinquish property may necessary public use without compensation decline well principal otherwise mind litigation absolving state private parties liability destruction real personal property cases actual necessity prevent spreading fire forestall grave threats lives property others bowditch boston see pacific course state may elect rescind regulation thereby avoid pay compensation permanent deprivation see first english evangelical lutheran church regulation already worked taking use property subsequent action government relieve duty provide compensation period taking effective ibid justice blackmun decries reliance background nuisance principles least part believes principles manipulable find harm prevention benefit conferral dichotomy see post doubt leeway interpretation existing state law permits remotely much think legislative crafting reasons confiscatory regulation stress affirmative decree eliminating economically beneficial uses may defended objectively reasonable application relevant precedents exclude beneficial uses circumstances land presently found justice kennedy concurring judgment case comes unusual posture colleagues observe ante post blackmun dissenting post stevens dissenting post statement souter suit initiated reached us south carolina amended beachfront management act authorize issuance special permits variance act general limitations see ann supp petitioner applied special permit may still availability alternative invoked may dispose petitioner claim permanent taking read opinion decide permanent taking claim neither foreclose south carolina considering claim requiring petitioner pursue administrative alternative previously available potential future relief control disposition whatever may occur future undo occurred past beachfront management act enacted ann et seq supp may deprived petitioner use land interim period deprivation amounts taking limited duration bar constitutional relief well established temporary takings protected constitution permanent ones first english evangelical lutheran church glendale county los angeles issues presented case ready decision south carolina decided case constitutional grounds rulings us exists jurisdictional bar disposition prudential considerations militate state complain manner issues arose uncertainty regard attributable state consequence amendment beachfront management act takings clause protect temporary deprivations well permanent ones enforcement must frustrated shifting background state law although establish framework remand moreover decide ultimate question whether temporary taking occurred case facts necessary determination developed record among matters considered remand must whether petitioner intent capacity develop property failed interim period state prevented failure petitioner comply relevant administrative requirements part analysis south carolina common pleas found petitioner real property rendered valueless state regulation app pet cert finding appears presume property significant market value resale potential curious finding share reservations colleagues finding beachfront lot loses value development restriction post blackmun dissenting post stevens dissenting post statement souter south carolina remand need consider case subject constraint must accept finding entered see oklahoma city tuttle accepting finding entered follows petitioner entitled invoke line cases discussing regulations deprive real property economic value see agins city tiburon finding value must considered takings clause reference owner reasonable expectations kaiser aetna penn central transportation new york city see also worthen kavanaugh takings clause conferring substantial protection property owners eliminate police power state enact limitations use property mugler kansas rights conferred takings clause police power state may coexist without conflict property bought sold investments made subject state power regulate taking alleged regulations deprive property value test must whether deprivation contrary reasonable expectations inherent tendency towards circularity synthesis course owner reasonable expectations shaped courts allow proper exercise governmental authority property tends become courts say circularity must tolerated matters however spheres katz fourth amendment protections defined reasonable expectations privacy definition moreover circular entirety expectations protected constitution based objective rules customs understood reasonable parties involved view reasonable expectations must understood light whole legal tradition common law nuisance narrow confine exercise regulatory power complex interdependent society goldblatt hempstead state prevented enacting new regulatory initiatives response changing conditions courts must consider reasonable expectations whatever source takings clause require static body state property law protects private expectations ensure private investment agree nuisance prevention accords common expectations property owners face regulation believe sole source state authority impose severe restrictions coastal property may present unique concerns fragile land system state go regulating development use common law nuisance might otherwise permit south carolina erred view reciting general purposes state regulations enacted without determination accord owner reasonable expectations therefore sufficient support severe restriction specific parcels property see promotion tourism instance suffice deprive specific property value without corresponding duty compensate furthermore means well ends regulation must accord owner reasonable expectations state act property zoned individual lot development parcels improved throwing whole burden regulation remaining lots must measured balance see pennsylvania coal mahon observations concur judgment justice blackmun dissenting today launches missile kill mouse state south carolina prohibited petitioner lucas building permanent structure property relying unreviewed implausible state trial finding restriction left lucas property valueless granted review determine whether compensation must paid cases state prohibits economic use real estate according occasion never arisen prior cases imagines arise relatively rarely extraordinary circumstances almost certainly happen case nonetheless presses decide issue ignores jurisdictional limits remakes traditional rules review creates simultaneously new categorical rule exception neither rooted prior case law common law common sense protest decision step taken reach fundamentally question wisdom issuing sweeping new rules decide narrow case surely justice kennedy demonstrates reached result wanted without inflicting damage upon takings clause jurisprudence fear new policies spread beyond narrow confines present case reason like give far greater attention case narrow scope suggests intercept missile save targeted mouse hope perhaps limit collateral damage congress passed coastal zone management act et seq act designed provide money incentives carry congress goal protecting public shoreline erosion coastal hazards amendments act congress directed enhance coastal programs reventing significantly reducing threats life destruction property eliminating development redevelopment areas supp ii south carolina began implementing congressional directive enacting south carolina coastal zone management act act construction activity designated critical area required permit south carolina coastal council construction habitable structure prohibited critical area relatively narrow effort stop loss shoreline october council appointed blue ribbon committee beachfront management investigate beach erosion propose possible solutions march committee found south carolina beaches critically eroding proposed land use restrictions report south carolina blue ribbon committee beachfront management mar response south carolina enacted beachfront management act july code ann et seq supp act change uses permitted within designated critical areas rather enlarged areas encompass distance mean high water mark setback line established basis best scientific historical data available code ann supp petitioner lucas contractor manager part owner wild dune development isle palms lived since december purchased two last four pieces vacant property development area notoriously unstable roughly half last years part petitioner property part beach flooded twice daily ebb flow tide tr petitioner property water shoreline feet onto petitioner property ibid first line stable vegetation property isle palms issued emergency orders sandbagging protect property wild dune development determining local habitable structures imminent danger collapse council issued permits two rock revetments protect condominium developments near petitioner property erosion one revetments extends onto one lots south carolina found beachfront management act take petitioner property without compensation decision rested two premises today unassailable state power prevent use property finds harmful citizens state statute entitled presumption constitutionality beachfront management act includes finding south carolina general assembly system serves purpose protect ing life property serving storm barrier dissipates wave energy contributes shoreline stability economical effective manner code ann supp general assembly also found development unwisely sited close system type development jeopardized stability system accelerated erosion endangered adjacent property see also discussing need afford system space accrete erode state legislature correct prohibition building front setback line prevents serious harm prior cases act constitutional long ago recognized property country held implied obligation owner use shall injurious community takings clause transform principle one requires compensation whenever state asserts power enforce keystone bituminous coal assn debenedictis internal quotation marks omitted see also consistently upheld regulations imposed arrest significant threat common welfare whatever economic effect owner see goldblatt hempstead euclid ambler realty gorieb fox mugler kansas petitioner never challenged legislature findings building ban necessary protect property life contend threatened harm sufficiently serious make building house particular location harmful use legislature made sufficient findings legislature motivated anything desire minimize damage coastal areas indeed petitioner objected trial evidence purposes setback requirement irrelevant tr south carolina accordingly understood petitioner contest state position discouraging new construction close proximity area necessary prevent great public harm prevent serious injury community considered bound uncontested legislative findings absence attack whatsoever statutory scheme nothing record undermines general assembly assessment prohibitions building front setback line necessary protect people property storms high tides beach erosion legislative determination disregarded absence evidence see euclid young hartford fire ins brandeis determination harm life property building sufficient prohibit use cases south carolina correctly found taking ii disagreement begins decision review case held consistently land use challenge ripe review final decision uses property permitted ripeness requirement simply gesture good land use planners absence final authoritative determination type intensity development legally permitted subject property macdonald sommer frates yolo county utilization state procedures compensation final judgment absence final judgment jurisdiction see san diego gas electric san diego agins city tiburon rule compelled nature inquiry required compensation clause factors applied deciding takings claim simply evaluated administrative agency arrived final definitive position regarding apply regulations issue particular land question williamson county regional planning hamilton bank johnson city see also macdonald sommer frates determine whether regulation gone far unless knows far regulation goes citation omitted admits amendments beachfront management act allowing special permits preclude lucas asserting property permanently taken see ante agrees claim ripe final decision respondent uses permitted however denied determines petitioner temporary takings claim period july june ripe claim also justiciable lac jurisdiction matter plaintiff sought authorization council use property challenged location baseline setback line alleged complaint final agency decision rendered concerning use property location said baseline setback line beachfront management act petitioner entitled challenge setback line baseline erosion rate applied property formal administrative followed judicial proceedings code ann supp lucas failed pursue administrative remedy council never finally decided whether lucas particular piece property correctly categorized critical area building permitted crucial lucas argued strenuously trial land perfectly safe build company studies prove tr correct council final decision alter setback line eliminating construction ban lucas property petitioner property fell within critical area initially interpreted council excuse petitioner failure challenge act application property administrative process claim ripe petitioner seeks variance status made quite clear mere assertion regulatory jurisdiction governmental body constitute regulatory taking riverside bayview homes see also williamson county claim ripe respondent seek variances allowed develop property notwithstanding commission finding plan comply zoning ordinance subdivision regulations even agreed jurisdictional barriers deciding case still try decide creates new taking jurisprudence based trial finding property lost economic value finding almost certainly erroneous petitioner still enjoy attributes ownership right exclude others one essential sticks bundle rights commonly characterized property kaiser aetna petitioner picnic swim camp tent live property movable trailer state courts frequently recognized land economic value residual economic uses recreation camping see turnpike realty dedham mass cert denied turner county del norte cal app hall board environmental protection petitioner also retains right alienate land value neighbors prepared enjoy proximity ocean without house yet trial apparently believing less value valueless used interchangeably found property valueless accepted evidence state property value without home petitioner appraiser testified never considered value absent residence tr appraiser value based fact highest best use lots luxury single family detached dwellings trial appeared believe property considered valueless available profitable use absent erroneous assumption see goldblatt find evidence record supporting trial conclusion damage lots virtue restrictions total record findings fact agree ante power decide case turns erroneous finding question wisdom deciding issue based factual premise exist case judgment exist future extraordinary circumstance ante clearly eager decide case eagerness absence proper jurisdiction must case met restraint iii willingness dispense precedent haste reach result limited initial jurisdictional decision also alters rules review south carolina decision defer legislative judgments absence challenge petitioner comports one oldest maxims existence facts supporting legislative judgment presumed carolene products indeed said legislature judgment conclusive berman parker see also sweet rechel euclid validity legislative classification zoning purposes fairly debatable legislative judgment must allowed control accordingly always required plaintiffs challenging constitutionality ordinance provide factual foundation record contravenes legislative findings young absence proof presumption constitutionality must prevail recently reaffirmed claimants burden showing state law constitutes taking see keystone bituminous coal see also goldblatt citing usual presumption constitutionality applies statutes attacked takings rather invoking traditional rules decides state burden convince courts legislative judgments correct despite lucas complete failure contest legislature findings serious harm life property permanent structure built decides legislative findings sufficient justify use prohibition instead emphasize state must merely proffer legislative judgments avoid invalidating law ante case apparently state burden showing regulation taking offers justification sudden hostility toward state legislators doubt iv reject south carolina decision simply basis disbelief distrust legislature findings also takes opportunity create new scheme regulations eliminate economic value categorical rule finding regulations taking unless use prohibit background common law nuisance property principle see ante first question rationale creating category obviates inquiry public interest advanced ante economic value lost one fact takings jurisprudence stated without contradiction particular circumstances case determine whether specific restriction rendered invalid government failure pay compensation central eureka mining although articulated certain factors considered including economic impact property owner ultimate conclusion necessarily requires weighing private public interests agins government regulation prevents owner economically valuable use property private interest unquestionably substantial never held public interest outweigh instead prior decisions uniformly reject proposition diminution property value standing alone establish taking penn central transp new york city repeatedly recognized ability government certain circumstances regulate property without compensation matter adverse financial effect owner may century ago explicitly upheld right prohibit uses property injurious public health safety welfare without paying compensation prohibition simply upon use property purposes declared valid legislation injurious health morals safety community sense deemed taking appropriation property mugler kansas basis upheld ordinance effectively prohibiting operation previously lawful brewery although establishments become value property see also mugler beginning long line cases powell pennsylvania upheld legislation prohibiting manufacture oleomargarine despite owner allegation prevented continuing value property employed therein entirely lost deprived means livelihood hadacheck sebastian upheld ordinance prohibiting brickyard although owner made excavations land prevented utilized purpose brickyard miller schoene held fifth amendment require virginia pay compensation owner cedar trees ordered destroyed prevent disease spreading nearby apple orchards preferment public interest property interest individual extent even destruction one distinguishing characteristics every exercise police power affects property omnia commercial stated destruction injury property frequently accomplished without taking constitutional sense recently goldblatt upheld town regulation barred continued operation existing sand gravel operation order protect public safety although comparison values relevant stated means conclusive declared instances state tribunal reasonably concluded health safety morals general welfare promoted prohibiting particular contemplated uses land upheld land use regulation destroyed recognized real property interests penn central transp first english evangelical lutheran church glendale county los angeles owner alleged floodplain ordinance deprived use property remanded case consideration whether even ordinance denied owner use justified safety measure keystone bituminous coal summarized years precedent repeatedly upheld regulations destroy adversely affect real property interests recognizes prior opinions suggested harmful noxious uses property may proscribed government regulation without requirement compensation ante seeks reconcile categorical rule claiming never upheld regulation owner alleged loss economic value even factual premise correct understanding cases distorted none cases suggest right state prohibit certain activities without paying compensation turned availability residual valuable use instead cases depended whether government interest sufficient prohibit activity given significant private cost cases rest principle state full power prohibit owner use property harmful public ince individual right use property create nuisance otherwise harm others state taken anything asserts power enjoin activity keystone bituminous coal make sense theory suggest owner constitutionally protected right harm others makes proper showing economic loss see pennsylvania coal mahon brandeis dissenting restriction upon harmful use become inappropriate means merely deprives owner use property profitably put ultimately even embrace full implications per se rule eventually agrees categorical rule taking based economic value wholly disregards public need asserted instead decides permit state regulate economic value state prohibits uses permitted background principles nuisance property law ante today explicitly rejected contention government power act without paying compensation turns whether prohibited activity common law nuisance brewery closed mugler common law nuisance specifically stated role legislature determine measures appropriate protection public health safety see upholding state action miller found unnecessary weigh nicety question whether infected cedars constitute nuisance according common law whether may declared statute see also goldblatt hadacheck instead relied past south carolina done legislative judgments constitutes harm rejects notion state always prohibit uses deems harm public without granting compensation distinction regulation often eye beholder ante since characterization depend primarily upon one evaluation worth competing uses real estate ante decides legislative judgment kind longer provide desired objective basis upholding regulation ante however fails explain proposed alternative escapes trap threshold inquiry imposition new rule deprivation economically valuable use determined objectively admits whether owner deprived economic value property depend property defined composition denominator deprivation fraction ante dispositive inquiry yet objective way define denominator long understood land use regulation characterized total deprivation aptly defined entitlement alternatively regulation always characterized mere partial withdrawal full unencumbered ownership landholding affected regulation michelman takings decision keystone bituminous coal illustrates principle perfectly keystone determined support estate merely part entire bundle rights possessed owner thus concluded support estate destruction merely eliminated one segment total property ibid dissent however characterized support estate distinct property interest wholly destroyed agree basis resolve dispute even perplexing however reliance common law principles nuisance quest takings jurisprudence determining nuisance common law state courts make exactly decision finds troubling made south carolina general assembly today determine whether use harmful common law public private nuisance law simply determination whether particular use causes harm see prosser private action public nuisance nuisance french word means nothing harm nothing magical reasoning judges long dead determined harm way state judges legislatures today judges centuries distinguish harm benefit judges century judges legislators simply reason believe new interpretations hoary common law nuisance doctrine particularly objective valuefree one abandons level generality sic utere tuo ut alienum non laedas ante one searches vain think anything resembling principle common law nuisance finally justifies new rule legislature may deprive property owner economically valuable use land even legislature finds harmful use action part long recognized understandings citizens ante understandings permit regulation use nuisance common law course inconsistent historical compact recorded takings clause ante clear opinion historical compact citizens understanding comes appear history principle state compensate individuals property taken public use widely established america time revolution colonists inherited concept property permitted extensive regulation use property public benefit regulation even go far deny productive use property owner coke stated regulation extends public benefit public every one hath benefit even century state governments often felt free take property roads public projects without paying compensation owners see horwitz transformation american law pp hereinafter horwitz treanor yale one declared citizens bound contribute much land laws country deemed necessary public convenience curwin yeates obvious movement toward establishing compensation principle century continued strong current american legal thought regarded compensation simply bounty given state kindness justice horwitz quoting commonwealth fisher pen see also state dawson hill although prior adoption bill rights america replete regulations describing activities considered noxious forbidden see bender takings clause principles politics buffalo friedman history american law fifth amendment takings clause originally extend regulations property whatever effect see ante state courts agreed narrow interpretation taking end nineteenth century jurists held constitution protected possession value siegel understanding nineteenth century contract clause role distinction takings clause jurisprudence bosselman even indirect consequential injuries property resulting regulations excluded definition taking see ibid callender marsh pick mass even courts began consider regulation situations constitute taking continued uphold bans particular uses without paying compensation notwithstanding economic impact rationale one obtain vested right injure endanger public coates cases example new york found taking new york ban interment dead within city although use made lands coates city new york cow see also brick presbyterian church city new york cow commonwealth alger cush mass louis gunning advertisement louis mo appeal dism recent cases reach result see consolidated rock products los angeles appeal dism nassr commonwealth mass eno burlington turner county del norte addition state courts historically less likely find government action constitutes taking affected land undeveloped according south carolina power legislature take unimproved land without providing compensation sanctioned ancient rights principles lindsay commissioners except massachusetts colony appears paid compensation built road across unimproved land legislatures provided compensation enclosed improved land treanor yale footnotes omitted rule followed see horwitz similar result common agrarian conception property limited owners natural uses land prior much century see thus example owner build nothing land alter natural flow water see see also merritt parker coxe recent state courts still follow reasoning see marinette county history indicate common law limit state power regulate harmful uses even point destroying economic value nothing discussions congress concerning takings clause indicates clause limited common law nuisance doctrine courts rejected understanding regularly recognized legislature interpose positive enactment prohibit use property injurious public tewksbury chief justice shaw explained upholding regulation prohibiting construction wharves existence taking depend whether certain erection tidewater nuisance common law alger see also state paul commonwealth parks mass holmes legislature may change common law nuisances may move line either way make things nuisances make things lawful nuisances short find clear accepted historical compact understanding citizens justifying new takings doctrine instead seems treat history grab bag principles adopted support theory ignored decided early common law provides background principles interpreting takings clause regulation opposed physical confiscation compensable decided law later period provides background principles regulation might compensable confront fact legislatures regularly determined uses prohibited independent common law independent whether uses lawful owner purchased makes analysis unworkable attempt package law two incompatible eras peddle historical fact makes sweeping view misguided unsupported changes takings doctrine limits changes narrow subset government regulation eliminate economic value land changes go far beyond necessary secure petitioner lucas private benefit one hopes go beyond narrow confines assigns today dissent country come recognize uncontrolled beachfront development cause serious damage life property see brief sierra club et al amici curiae hurricane hugo september attack upon south carolina coastline example caused deaths approximately billion property damage much result uncontrolled beachfront development see zalkin shifting sands shifting doctrines changing takings doctrine south carolina coastal zone statute beachfront buildings destroyed storm often driven like battering rams adjacent inland homes ibid moreover development often destroys natural sand dune barriers provide storm breaks ibid setback line determined calculating distance landward crest ideal oceanfront sand dune times annual erosion rate code ann supp properties sold frequently rapidly escalating prices lucas purchased lot first sold sold finally lucas estimated worth lot similar past record indicate purchased properties prior lucas none purchasers held lots built tr reliance ante esposito south carolina coastal council cert denied support decision consider lucas temporary takings claim ripe misplaced esposito plaintiffs brought facial challenge mere enactment act course lucas brought challenge see brief petitioner facial challenges ripe act passed applied challenges require final decision act application property question even baffling given decision days ago lujan defenders wildlife decides petitioner demonstrated injury fact complaint petitioner made allegations definite plans using property app pet cert trial lucas testified house plans drawn hurry build lot appreciating value tr trial made findings fact lucas plans use property ome day intentions without description concrete plans indeed even specification day support finding actual imminent injury cases require circumvents defenders wildlife deciding resolve case arrived pleadings alone lucas full trial claim damages temporary taking property date act passage time matter finally resolved ante quoting complaint failed demonstrate immediate concrete plans build sell respondent contested findings fact trial south carolina resolve issue decision assume purposes petitioner denied economic use land course dispose issue remand overlooks lack ripe justiciable claim apparently concern absence intervention lucas unable obtain adjudication temporary takings claim chastises respondent arguing lucas temporary takings claim premature failed much commen upon effect south carolina decision petitioner ability obtain relief year period frets lucas unable absent intervention obtain state adjudication respect period ante whatever explanation intense interest lucas plight ordinarily cautious granting discretionary review concern prudently expressed vacating judgment remanding consideration light amendments point petitioner brought temporary takings claim state courts prior mugler held owners whose real property wholly destroyed prevent spread fire entitled compensation bowditch boston recognized license cases opinion mclean acknowledged police power state extends often destruction property year appeal came asking hether zoning ordinances altogether destroy worth valuable land prohibiting economic use capable effect taking real property without compensation juris statement dismissed appeal lack substantial federal question consolidated rock products los angeles appeal dism remand california found taking part zoning regulation involves highest public interests prevention death injury first lutheran church los angeles cert denied suggestion agins city tiburon unanimous opinion created new per se rule discovered unpersuasive agins stated precise rule determines property taken instead question necessarily requires weighing public private interest cases cited ante repeat agins sentence way suggest public interest irrelevant total value taken indicated proof regulation deny owner economic use property sufficient defeat facial takings challenge see hodel virginia surface mining reclamation conclusion regulation face taking allows landowner economic use property far cry proposition denial use sufficient establish takings claim regardless consideration never accepted latter proposition relies today dicta agins hodel nollan california coastal keystone bituminous coal assn debenedictis new categorical rule ante prefer rely directly contrary holdings cases mugler kansas hadacheck sebastian mention contrary statements cases relies see agins keystone bituminous coal miller schoene example course demonstrating apple trees valuable red cedar trees noted red cedar occasional use value lumber discuss whether timber owned petitioner case commercially salable nothing opinion suggests state right require uncompensated felling trees depended salvage value contrary clear unanimous opinion schoene sustained law requiring burning cedar trees necessary protect apple trees public interest spoke preferment public interest property interest individual extent even destruction seeks disavow holdings reasoning mugler subsequent cases explaining early efforts define scope police power language earliest takings cases suggesting police power considered power simply prevent harms subsequently expanded understanding government legitimate interests follow holding early cases harmful noxious uses property forbidden whatever harm property owner without payment compensation repudiated contrary consciously expanded scope police power beyond preventing harm clarified core public interests overrode private interest see keystone bituminous coal indeed extraordinary construe constitution require government compensate private landowners denied right use property used without risking injury death first lutheran church although refers state nuisance property law apparently mean state nuisance property law public nuisance first common law creation see newark boundaries nuisance attributing development nuisance england legislatures power define public nuisance particular uses often selectively targeted see prosser private action public nuisance stephen general view criminal law england ed references common law background principles however indicate legislative determinations constitute state nuisance property law also today fact regulation prohibited uses lawful time owner purchased determine constitutional question brewery brickyard cedar trees gravel pit perfectly legitimate uses prior passage regulation see mugler kansas hadacheck sebastian miller goldblatt hempstead explicitly acknowledged hadacheck vested interest asserted police power conditions obtaining hold preclude development fix city forever primitive conditions citation omitted argues finding taking legislature prohibits harmful use mugler south carolina instant case nullify pennsylvania coal see ante justice holmes author pennsylvania coal joined miller schoene six years later miller adopted exact approach south carolina found cedar trees harmful destruction taking whether nuisance justice holmes apparently believed approach repudiate earlier opinion moreover already ground five years ago point rejected assertion pennsylvania coal inconsistent mugler hadacheck miller others string noxious use cases recognizing instead nature state action critical takings analysis keystone bituminous coal see also michelman property utility fairness comments ethical foundations compensation law sax takings police power yale perhaps impenetrable jungle entire law surrounds word nuisance meant things people applied indiscriminately everything alarming advertisement cockroach baked pie keeton dobbs keeton owen prosser keeton law torts ed footnotes omitted area law straddles legal universe virtually defies synthesis generates case law suit every taste rodgers environmental law footnotes omitted noted nuisance concepts often vague indeterminate milwaukee illinois see generally sax yale evidence certainly seems indicate mere fact government activity destroyed existing economic advantages power disturb english theorists formulated compensation notion professor sax contends even blackstone remembered champion language private property believe compensation clause meant preserve economic value attorney general south carolina responded property holders demand compensation state took land build road arguing one instance record certainly none within memory oldest man living demand made compensation soil freehold lands lindsay commissioners constitutions vermont massachusetts required compensation paid private property taken public use although eminent domain mentioned pennsylvania constitution sole requirement property taken without consent legislature see grant higher law background law eminent domain selected essays constitutional law five original still compensation clauses constitutions ibid james madison author takings clause apparently intended apply direct physical takings property federal government see treanor origins original significance compensation clause fifth amendment yale professor sax argues although contemporaneous commentary upon meaning compensation clause short supply yale authorities available indicate clause designed prevent arbitrary government action protect economic value reason retroactive application regulation formerly lawful uses controlling distinction past make difference right purchased previous passage right absolute ownership property mere easement purchased holden subject restriction shall exercised injure others though time remote inoffensive purchaser bound know peril may become otherwise coates city new york cow see also brick presbyterian church city new york cow commonwealth tewksbury metc mass state paul recent decisions agree see lane mt vernon commonwealth baker super asserts early american experience prior passage bill rights case law prior entirely irrelevant determining historical compact recorded takings clause ante apparently find compact early federal takings cases clearly permitted prohibition harmful uses despite alleged loss value whether prohibition common law nuisance whether prohibition occurred subsequent purchase see supra imagine finds historical compact history justice stevens dissenting today restricts one rule expands another opinion errs counts proper application doctrine judicial restraint avoid premature adjudication important constitutional question proper respect precedents avoid illogical expansion concept regulatory takings notes ante south carolina beachfront management act amended permit construction residences seaward line frustrated petitioner proposed use property exhausts right apply special permit amendment petitioner entitled adjudication merits permanent takings claim macdonald sommer frates yolo county also clear viable temporary takings claim assume petitioner able build lot injury may suffered delay caused temporary existence absolute statutory ban construction sure however delay caused petitioner harm record tell us whether building plans even temporarily frustrated enactment statute thus present record entirely possible petitioner suffered injury fact even state statute unconstitutional filed lawsuit true notes argument deciding constitutional issue case rests prudential considerations rather want jurisdiction think equally clear however less eager decide merits follow wise counsel justice brandeis deservedly famous concurring opinion ashwander tva explained developed governance cases confessedly within jurisdiction series rules avoided passing upon large part constitutional questions pressed upon decision second rules applies directly case anticipate question constitutional law advance necessity deciding liverpool emigration commissioners citing five additional cases habit decide questions constitutional nature unless absolutely necessary decision case burton ii analysis merits starts premise adopted categorical rule total regulatory takings must compensated ante sets task identifying exceptional cases state may relieved categorical obligation ante test announces regulation must duplicate result achieved state nuisance law ante test categorical rule apply unless regulation merely makes explicit otherwise implicit limitation owner property rights opinion doubly error categorical rule establishes unsound unwise addition law formulation exception rule rigid narrow categorical rule recognizes ante pennsylvania coal mahon provides support indeed categorical rule contrary justice holmes recognized absolute rules inquiry regulatory takings thus paragraph contains famous observation regulation may go far thereby constitute taking justice wrote already said question degree therefore disposed general propositions already said made perfectly clear justice holmes regarded economic injury merely one factor weighed one fact consideration determining limits extent diminution value question depends upon particular facts new categorical rule find support decisions following mahon although dicta sometimes recited law effects taking denies owner economically viable use land agins city tiburon rulings rejected absolute position frequently recently held circumstances law renders property valueless may nonetheless constitute taking see first english evangelical lutheran church glendale county los angeles goldblatt hempstead caltex miller schoene hadacheck sebastian mugler kansas cf ruckelshaus monsanto connolly pension benefit guaranty corporation short stated keystone bituminous coal assn debenedictis although comparison values regulatory action relevant means conclusive addition lacking support past decisions new rule wholly arbitrary landowner whose property diminished value recovers nothing owner whose property diminished recovers land full value case hand illustrates arbitrariness well beachfront management act prohibited building new dwellings certain areas also prohibited rebuilding houses destroyed beyond repair natural causes fire see also esposito south carolina coastal council thus homes adjacent lucas lot destroyed hurricane one day act took effect owners able rebuild assured recovery categorical approach lucas lost opportunity build recovers neighbors lost opportunity build homes recover arbitrariness rule palpable moreover elastic nature property rights new rule also prove unsound practice response rule courts may define property broadly rarely find regulations effect total takings approach adopts revisionist reading venerable precedents told notwithstanding findings contrary case brewery mugler brickyard hadacheck gravel pit goldblatt put uses therefore cases involve total regulatory takings ante hand developers investors may market specialized estates take advantage new rule smaller estate likely regulatory change effect total taking thus investor may example purchase right build multifamily home specific lot result zoning regulation allows homes render investor property interest valueless short categorical rule likely one two effects either courts alter definition denominator takings fraction rendering categorical rule meaningless investors manipulate relevant property interests giving rule sweeping effect mind neither results desirable appropriate distortions takings jurisprudence finally justification new categorical rule remarkably thin mentions passing three arguments support rule none convincing first suggests total deprivation feasible use landowner point view equivalent physical appropriation ante argument proves much landowner point view regulation diminishes lot value well equivalent condemnation half lot yet well established diminution value constitute taking see euclid ambler realty diminution value thus landowner perception regulation justify new rule second emphasizes total takings relatively rare new rule adversely affect government ability go ante argument proves little certainly true defining small class regulations per se takings greatly hinder important governmental functions true small class regulations suggestion begs question regulations particular class always found effect takings finally suggests regulations leave owner without economically beneficial use carry heightened risk private property pressed form public service ibid discussed fully see part iii infra agree risks singling central concern takings law however risks justify per se rule total regulatory takings necessary correlation singling total takings regulation may single property owner without depriving property see nollan california coastal associates atkinson may deprive property without singling see mugler kansas hadacheck sebastian matters cases degree diminution value rather specificity expropriating act reason third justification new rule also fails short new rule unsupported prior decisions arbitrary unsound practice theoretically unjustified opinion categorical rule important one established today supported history reason yet provided nuisance exception like many rules categorical rule established case categorical page two reports sooner state total regulatory takings must compensated ante quickly establishes exception rule exception provides regulation renders property valueless taking prohibits uses property previously permissible relevant property nuisance principles ante thus rejects basic holding mugler kansas held statute prohibited owner brewery making alcoholic beverages effect taking even though use property perfectly lawful caused public harm statute enacted squarely rejected rule adopts today true defendants erected breweries laws state forbid manufacture intoxicating liquors state thereby give assurance come obligation legislation upon subject remain unchanged supervision public health public morals governmental power continuing nature dealt special exigencies moment may require purpose largest legislative discretion allowed discretion parted power holding today effectively freezes state common law denying legislature much traditional power revise law governing rights uses property today thought long abandoned approach constitutional law century ago recognized great office statutes remedy defects common law developed adapt changes time circumstances munn illinois justice marshall observed position similar adopted today accepted claim represent return era lochner new york common law rights also found immune revision state federal government approach freeze common law constructed courts perhaps state development allow room change response changes circumstance due process clause require result pruneyard shopping center robins concurring opinion course legislative redefinitions property effect taking must compensated certainly case every movement away common law reason less sense absolute rule live world changes economy environment occur increasing frequency importance wise century ago allow government largest legislative discretion deal special exigencies moment mugler imperative today rule govern decision case kind focus future past categorical approach rule fear greatly hamper efforts local officials planners must deal increasingly complex problems land use environmental regulation case claims individual property owner exceed million well demonstrates officials face substantial uncertainty ad hoc nature takings law unacceptable penalties guess incorrectly law viewed broadly new rule exception conflict character takings jurisprudence frequently consistently recognized definition taking reduced set formula determining whether regulation taking essentially ad hoc factual inquir penn central transportation new york city quoting goldblatt hempstead unavoidable determination whether law effects taking ultimately matter fairness justice armstrong necessarily requires weighing private public interests agins rigid rules fixed today clash enterprise fairness justice often disserved categorical rules iii well established takings case entails inquiry several factors character governmental action economic impact interference reasonable expectations pruneyard analysis today focuses last two three factors categorical rule addresses regulation economic impact nuisance exception recognizes ownership brings certain expectations neglected today first ways important factor takings analysis character regulatory action compensation clause designed bar government forcing people alone bear public burdens fairness justice borne public whole armstrong accordingly one central concerns takings jurisprudence prevent ing public loading upon one individual share burdens government monongahela navigation therefore takings law frequently looked generality regulation property example case developmental exactions paid special attention risk particular landowners might singled bear burden broader problem making nollan see also pennell san jose similarly distinguishing kohler act issue mahon subsidence act issue keystone found significant regulatory function latter substantially broader unlike kohler act simply transferred back surface owners certain rights earlier sold coal companies subsidence act affected surface owners including coal companies equally see keystone perhaps familiar application principle generality arises zoning cases diminution value caused zoning regulation far less likely constitute taking part general comprehensive land use plan see euclid ambler realty conversely spot zoning far likely constitute taking see penn central presumption permanent physical occupation matter slight effects taking wholly consistent principle physical taking entails certain amount singling consistent principle physical occupations third parties likely effect takings physical occupations thus regulation requiring installation junction box owned third party loretto teleprompter manhattan catv troubling regulation requiring installation sprinklers smoke detectors order granting third parties access marina kaiser aetna troubling order requiring placement safety buoys marina analyzing takings claims courts long recognized difference regulation targets one two parcels land regulation enforces statewide policy see profiles lauderdale wheeler pleasant grove trustees pomeroy westlake see also burrows keene herman glick realty louis county mo app huttig richmond heights mo one early stated regard waterfront regulation restraint fact imposed upon estate one proprietor several estates line shore objection much formidable commonwealth alger mass considering lucas claim generality beachfront management act significant act target particular landowners rather regulates use coastline entire state see code ann supp indeed south carolina act best understood part national effort protect coastline one initiated federal coastal zone management act stat codified amended et seq pursuant federal act every coastal state implemented coastline regulations moreover act single owners undeveloped land act also prohibited owners developed land rebuilding structures destroyed see acts equally significant repairing erosion control devices seawalls see code ann supp addition situations owners developed land required renouris beach yearly basis amount sand less one times yearly volume sand lost due erosion acts short south carolina act imposed substantial burdens owners developed undeveloped land alike generality indicates act effort expropriate owners undeveloped land admittedly economic impact regulation dramatic petitioner expectations substantial yet anything costs expectations owners developed land even greater doubt however cost owners developed land renourishing beach allowing seawalls deteriorate effects taking costs imposed owners undeveloped land petitioner differ costs degree kind impact ban developmental uses must also viewed light purposes act legislature stated purposes act protect ing preserv ing restor ing enhanc ing system state recreational ecological purposes also protec life property code ann supp state much science side believes system acts buffer high tides storm surge hurricanes ibid traditional important exercise state police power demonstrated hurricane hugo caused deaths billion property damage south carolina alone view factors even assuming petitioner property rendered valueless risk inherent investments sort made petitioner generality act compelling purpose motivating south carolina legislature persuade act effect taking petitioner property accordingly respectfully dissent regard noteworthy petitioner acquired lot months statute passed evidence ever sought building permit local authorities aspect act amended see code ann supp course easily said case lucas may put land uses fishing camping example may sell land neighbors buffer either event land far valueless highlights fundamental weakness analysis failure explain impairment economically beneficial productive use ante emphasis added property relevant takings analysis think regulation arbitrarily prohibiting owner continuing use property bird watching sunbathing might constitute taking circumstances conversely uses value owner yet offers basis assumption uses property cognizable constitution developmental uses unfortunate possibility created subtle revision total regulatory takings dicta past decisions stated regulation effects taking denies owner economically viable use land agins city tiburon emphasis added indicating total takings test apply estates today however suggests regulation may effect total taking real property interest see ante even measured terms efficiency rule unsound today effectively establishes form insurance certain changes land use regulations like forms insurance rule creates moral hazard inefficiencies face uncertainty changes law developers overinvest safe knowledge law changes adversely entitled compensation see generally farber economic analysis compensation rev law econ correctly notes regulatory takings unlike physical takings courts choice remedies see ante may invalidat excessive regulation may allo regulation stand orde government afford compensation permanent taking first english evangelical lutheran church glendale county los angeles stevens dissenting see also either event however costs government likely substantial therefore likely impede development sound land use policy principle generality well rooted broader understandings constitution designed part control mischiefs faction see federalist wills ed madison analogous concern arises first amendment law recognized individual rights violated religious practices prohibited neutral law general applicability example employment dept human resources smith observed decisions consistently held right free exercise relieve individual obligation comply valid neutral law general applicability ground law proscribes prescribes conduct religion prescribes proscribes lee stevens concurring judgment prince massachusetts held mother prosecuted child labor laws using children dispense literature streets religious motivation notwithstanding found constitutional infirmity excluding children children may braunfeld brown plurality opinion upheld laws claim burdened religious practices persons whose religions compelled refrain work days gillette sustained military selective service system claim violated free exercise conscripting persons opposed particular war religious grounds see levmore takings torts special interests see zalkin shifting sands shifting doctrines changing takings doctrine south carolina coastal zone statute rev nn collecting statutes provision amended see code ann supp provision amended authority renourishment shifted local governments see code ann supp regard act closely resembles subsidence act keystone kohler act pennsylvania coal mahon closely resembles general zoning scheme euclid ambler realty specific landmark designation penn central transportation new york city zalkin statement justice souter dismiss writ certiorari case granted improvidently briefing argument abundantly clear unreviewable assumption case comes us questionable conclusion fifth amendment law sufficient frustrate ability render certain legal premises holding rests petition review granted assumption state regulation deprived owner entire economic interest subject property state trial conclusion state review apparent light prior cases see keystone bituminous coal assn debenedictis andrus allard penn central transportation new york city trial conclusion highly questionable respondent wishes contest point see brief respondent certainly right refuse take issue fairly included within question presented received superficial treatment us questionable conclusion total deprivation reviewed precluded attempting clarify concept total view categorically compensable taking rests concept describes see ante uncertain existing law fostered inconsistent pronouncements concept left uncertain significance exceptions compensation requirement proceeds recognize alone enough show little utility attempting deal case merits imprudence proceeding merits spite unpromising circumstances underscored fact help assume something scope uncertain concept total deprivation even barred explicating total deprivation directly thus concludes application nuisance law provides exception general rule complete denial economically beneficial use property amounts compensable taking understood suggest assume fact circumstances state law nuisance abatement may amount denial beneficial land use concept employed takings jurisprudence fifth fourteenth amendments nature nuisance law however indicates application regulation defensible grounds nuisance prevention abatement quite probably amount complete deprivation fact nuisance enquiry focuses conduct character property conduct performed see restatement second torts public nuisance private nuisance remedies conduct usually leave property owner reasonable uses property see keeton dobbs keeton owen prosser keeton law torts ed public nuisances usually remedied criminal prosecution abatement private nuisances usually remedied damages injunction abatement see also mugler kansas prohibition use property manufacture intoxicating beverages disturb owner control use property lawful purposes restrict right dispose declaration state use certain forbidden purposes prejudicial public interests hadacheck sebastian prohibition operation brickyard prohibit extraction clay bricks produced indeed difficult imagine property used create nuisance sole economic value must presuppose right occupy seriously noxious activity upshot issue constitutes total deprivation addressed indirection uncertain results treatment defenses compensation claims issue constitutes total deprivation deserves attention relationship nuisance abatement total deprivation confront matters directly neither case skip preliminary issues deal independently defenses categorical compensation rule dismiss instant writ await opportunity face total deprivation question squarely circumstances believe proper vote dismiss writ despite contrary preference see welsh wisconsin burger shannon frankfurter