Lucas and creative constitutional interpretation.

• Author: Sullivan, Edward J.
• Position: A Colloquium on Lucas

I participated, to some small extent, in the Lucas case, being on the American Planning Association's Amicus Curiae Committee, which filed a Supreme Court brief in the case. The Court neither followed, nor apparently even used that brief. In fact, the Court did not use many of the amicus briefs in the case. One comes away with the feeling that the Court knew where it wanted to be in that case and cobbled a way of justifying that position. Moreover, the opinion of the Court, though fairly narrow in its scope, contains, especially in the footnotes, the seeds of a far more expansive change from current takings jurisprudence.

On its face, Lucas was not a radical departure from previous law, holding that if a statute, unsupported by common law, deprives a property of all value, it constitutes a "taking."(1) To quote the Court, "When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of a common good, that is to leave property economically idle, he has suffered a taking."(2) The implications of the case are really found in the footnotes of the Court's opinion, particularly footnotes 7 and 8, discussed below.(3) While the text of the case does not radically depart from current law, this and certain other Supreme Court cases have eroded the underpinnings of the social contract which underlies environmental regulation. These cases seem to have resurrected substantive due process in one of its more radical forms.

Lucas contained an unfortunate constellation of facts. The plaintiff expended a great deal of money to buy two undeveloped lots before the challenged regulations came into effect.(4) Property owners had already developed other lots in the area.(5) There was then the apparent unfairness of prohibiting Lucas from building on the two lots he had purchased with development in mind. There was an unchallenged lower court finding that the Lucas lots were valueless, despite the owner's expectation of economic use.(6) There was, at the time the initial lawsuit was filed, no administrative means of obtaining a variance from the regulations.(7) In fact, the South Carolina legislature did not enact variance provisions until two years after the original legislation came into effect (and after the lower court's decision).(8) There was thus no "safety valve" available. Finally, the South Carolina Supreme Court found the case to be ripe.(9) Consequently, the state could not use the strong defense that...