Planning Staffs “Outed” by Lucas Opinion

Abstract

Well, the cat's out of the bag now. All of us have become accustomed to seeing statutes, ordinances, and regulations preceded by lengthy legislative “findings” purporting to justify the restrictive legislation that follows. Indeed, the South Carolina statute at issue in Lucas v. South Carolina Coastal Council, No. 91-453 (U.S. June 29, 1992), 44 ZD 302, was replete with them. We are also accustomed to seeing courts engage in the fiction that the legislative body actually held hearings, took evidence, evaluated thoughtfully, and came to these “findings” out of that deliberative process. Based on that mythological process, government lawyers became accustomed to marching into court with those “findings” and obtaining judicial holdings that the “findings” were not subject to contest in litigation over the enforcement or validity of the ensuing regulations.