Property rights and coastal protection: the case of Lucas v. South Carolina Coastal Council

Abstract

In 1986, David Lucas purchased two oceanfront lots on the Isle of Palms, South Carolina. Before he built on the lots, the South Carolina Legislature passed the Beachfront Management Act, restricting development along the coast. Unable to build a permanent structure on his property, Lucas sued the South Carolina Coastal Council. The case made its way to the US Supreme Court, and became one of the most significant cases in US planning history. This article situates the case in the context of the history of real property rights, chronicles the events leading up to the case, follows the case through the court system, and analyses its impact on planning practice. Although the case had less significant implications for planning than originally anticipated, it does carry important lessons for land-use planning, subdivision regulation, and planning in sensitive environmental areas. It was a defining moment for coastal conservation in the USA, and had a significant impact on implementation of the US Coastal Zone Management Act, which has been used as a model internationally.

Keywords:

• Lucas v. South Carolina Coastal Council
• coastal planning
• environmental law
• development regulation
• David Lucas
• coastal zone management
• property rights

Notes on contributors

Rebecca Retzlaff is an associate professor in the community planning program, School of Architecture, Planning, and Landscape Architecture, at Auburn University. She teaches classes in land-use planning, historic preservation, planning theory, and planning law. Her research focuses on historical details of how planning and development regulations emerged and changed throughout time in the USA.

Sarah Sisser is the Executive Director of the Hancock Historical Museum in Findlay, Ohio. She holds a Bachelor of Fine Arts degree in Historic Preservation from the Savannah College of Art and Design and a Master of Community Planning degree from Auburn University. Her work focuses on enhanced placemaking through historic preservation.

Notes

^†The names of the authors appear in alphabetical order, indicating their equal contribution to this research.

1. 505 U.S. 1003 (1992).

2. Lennon et al., Living with the South Carolina Coast, 183–5.

3. Jacobs, “Preface,” x–xi.

4. Ibid., xii.

5. Ibid., xii.

6. Hall, Cities of Tomorrow, 60.

7. Meck, “Notes on Planning Statute Reform in the United States,” 34.

8. Hall, Cities of Tomorrow, 61.

9. 260 U.S. 393 (1922). Mandelker et al. note that although Pennsylvania Coal v. Mahon “famously began the evolution of the ‘regulatory takings’ doctrine,” the courts thinking in the case may have been influenced by earlier decisions, including Mugler v. Kansas (123 U.S. 623 (1887), Lawton v. Steele (152 U.S. 133 (1894), and Hadacheck v. Sebastian (239 U.S. 394 (1915). See Mandelker et al., Planning and Control of Land Development, 87–8.

10. “The Legal Doctrine of Regulatory Takings: an Evolving Issue: Part 1 of 2,” 366.

11. 272 U.S. 365 (1926).

12. Alfred Bettman successfully convinced the court to rule only on the constitutionality of zoning – not as it was applied in the Village of Euclid. See Mandelker et al., Planning and Control of Land Development, 103.

13. 348 U.S. 26 (1954).

14. Mandelker et al., Planning and Control of Land Development, 75.

15. 438 U.S. 104 (1978).

16. 447 U.S. 255, 260 (1980).

17. See “The Legal Doctrine of Regulatory Takings: an Evolving Issue: Part 1 of 2,” 367.

18. Ibid., 367.

19. 554 U.S. 528 (2005).

20. 544 U.S. 528 (2005) The court was careful to note that the removal of the “substantially advances” test does not change any prior decisions.

21. 467 U.S. 229 (1984).

22. 480 U.S. 470 (1987).

23. 483 U.S. 825 (1987).

24. The Nollans were eventually allowed to build their home and were paid market value for the land incurred by the state through the easement. See “The Legal Doctrine of Regulatory Takings: an Evolving Issue: Part 1 of 2,” 367.

25. 482 U.S. 304 (1987).

26. 535 U.S. 302 (2002).

27. 545 U.S. 469 (2005).

28. 545 U.S. 323 (2005).

29. American Planning Association, The Four Supreme Court Land-Use Decisions of 2005, 19.

30. Bush et al., Living by the Rules of the Sea, 4.

31. Crossett et al., Population Trends Along, 1.

32. Ibid., p.16.

33. Living with the South Carolina Coast, 2.

34. South Carolina Office of Coastal Zone Management, “Chapter 1: The Coast of South Carolina,” I–41.

35. U.S. Census Bureau, “USA Counties.”

36. Donald K. Stauble, “Barrier Islands – Dynamic Coastal Landforms Requiring Complex Management Decisions,” 64.

37. Ibid., 63.

38. Ibid., 63.

39. Kana, “The South Carolina Coast II,” 275.

40. Nelson, “Beachfront Management on the Isle of Palms,” 315–25.

41. “Barrier Islands – Dynamic Coastal Landforms Requiring Complex Management Decisions, A Symposium Introduction and Overview,” 64.

42. Ibid., 281.

43. Nelson, “Beachfront Management on the Isle of Palms,” 315–25.

44. Living with the South Carolina Coast, 180.

45. Korakandy, Coastal Zone Management, 71.

46. UNESCO, “International Legal Principles of Coastal Zone Management.”

47. Ibid., 180.

48. Critical areas include coastal waters, tidelands, beaches, and dunes. See Kendall, “Preserving South Carolina's Beaches.”

49. Living with the South Carolina Coast, 180.

50. Ibid., 198.

51. Ibid., 180.

52. Blue Ribbon Committee on Beachfront Management, South Carolina Blue Ribbon committee on Beachfront Management, i.

53. 1988 S.C. Acts 634 §48-39-280(b). See also Ausness, “Wild Dunes and Serbonian Bogs,” 437–71.

54. Living with the South Carolina Coast, 183.

55. Rinehart and Pompe, “Property Rights and Coastal Protection,” 171. The Act was amended several times in the interim, as the authors chronicle, “After Hurricane Hugo struck the state with such devastating effect in September 1989, the Act was amended to ease some of the burden on affected property owners, although the commitment to retreat from the beach in the long run remained. Among other things, the 1990 amendment abolished the dead zone for buildings damaged or destroyed, but not for new structures.”

56. Lucas, Lucas vs. The Green Machine, 30.

57. Lucas was involved in the South Carolina presidential primary in 1979 – supporting Ronald Reagan because of his small government stance, “I believed that he stood for the best things about America and that he would be able to reverse the growth of big government in Washington.” Lucas, Lucas v. The Green Machine, 34–40.

58. Ibid., 42. Lucas credits the desire to sell Wild Dunes to several factors: budget deficits in Washington, the fear that “by 1986 or 1987 the real estate values of the country would be in a tail spin,” and a change in local government leadership, “Green politics, no growth policies, and the drawbridge mentality had now taken over the local government. A no growth, little old lady in tennis shoes, with a ‘not in my backyard’ group took over city hall.”

59. Critics have questioned Lucas's intention in purchasing the lots, as Been notes

It does seem strange that Lucas would spend almost $500,000 to buy a lot for investment purposes just months after deciding to cash out of the partnership because of fears that the political and economic climate for real estate had soured. Lucas claims that he was “smart enough to get out of the speculative real estate business at the right time, while the business was still good and prices were high.” Why then, would he purchase a new lot for speculation a few months later?

Been, “Lucas v. The Green Machine,” 221–57.

Quoting Dwight Merriam, “Rules for the Relevant Parcel,” 373. Been also questions why Lucas paid such a high price for the lots instead of purchasing them earlier, “It also seems off that a partner – indeed, the father of the partnership itself, as he tells it – waited to pay full market price after leaving the partnership to secure a lot for his family residence.”

60. Callies, “Taking the Taking Issue,” 2.

61. Ibid., 2.

62. Lucas, Lucas vs. The Green Machine, 79.

63. Jones and Eiser, “A Review of the South Carolina Method,” 284. See also Ausness, “Wild Dunes and Serbonian Bogs,” 444.

64. Living with the South Carolina Coast, 181.

65. Ibid., 181.

66. Ibid., 182.

67. Ibid., 102.

68. Ibid., 100.

69. Ibid., 183.

70. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066), 97.

71. South Carolina attorney Camden Lewis argued the case for Lucas in front of the US Supreme Court, working with attorney David J. Bederman. Cotton C. Harnass III represented the South Carolina Coastal Council in front of the US Supreme court, and William L. Want was retained by the SCCC to defend against the onslaught of takings claims upon establishment of the setback areas, and subsequently authored the Hayes Amendment to BMA.

72. Order for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, County of Common Pleas, (C/A No. 88-CP-10-66): 3.

73. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 45.

74. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 67.

75. The SCCC's appraiser came to this figure based on a 10% salvage value for the lots after passage of the Beachfront Management Act. According to the appraiser,

you have an element there of gambling that a purchaser would be willing to pay a small percentage of the value of that property, hoping there would be some change in the Act that would allow them to use the property. Number two, there is always the chance that given the – you have erosion but you also have accretion and there may be accretion that would allow the lines to be moved seaward, also allowing you to use your property. My third reasoning is that you would have maybe adjoining property owner who would want to purchase the land for control of the land.

Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 149. See also Donato, “Appraisals of Lots 22 and 24,” 40.

76. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 148.

77. Order for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, County of Common Pleas, (C/A No. 88-CP-10-66): 6.

78. Order for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, County of Common Pleas, (C/A No. 88-CP-10-66): 6.

79. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 16.

80. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 113.

81. Ibid., 33.

82. Wild Dunes Beach and Racquet Club and Research Planning Institute, The Shore at Wild Dunes, 3. See also Kana, Beach Erosion in South Carolina, 21.

83. Order for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, County of Common Pleas, (C/A No. 88-CP-10-66): 5.

84. Transcript of Record for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, Court of Common Pleas, August 7, 1989 (No. 89 CP 10 0066): 8–9.

85. Order for David H. Lucas v. South Carolina Coastal Council, Charleston County, SC, County of Common Pleas, (C/A No. 88-CP-10-66): 7.

86. Daniel R. Mandelker, “Of Mice and Missiles,” 291. See also Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Stevens, J. dissenting).

87. David H. Lucas v. South Carolina Coastal Council, 304 S.C. 376, 404 S.E. 2d 895, petition for cert filed (U.S. September 13, 1991) (No. 91-453).

88. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

89. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Souter, J. dissenting).

90. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

91. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

92. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Stevens, J. dissenting).

93. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Blackmun, J. dissenting). See also Dunlap, “Resolving Property ‘Takings’.”

94. Motion to Clarify Remand, South Carolina Coastal Council, Appellant v. David H. Lucas, Respondents, South Carolina Supreme Court (90-38), July 23, 1992.

95. South Carolina Coastal Council, Appellant v. David H. Lucas, Respondents, South Carolina Supreme Court (90-38), November 20, 1992.

96. Amended Complaint (Jury Trial Demanded), David H. Lucas, Plaintiff, v. South Carolina Coastal Commission, an agency of the State of South Carolina, Defendant, County of Charleston, South Carolina, Court of Common Pleas (89-10-66), December 4, 1992: 4.

97. The request for attorney fees came under a separate motion: Motion for Attorney Fees, David H. Lucas, Plaintiff, v. South Carolina Coastal Commission, an agency of the State of South Carolina, Defendant, County of Charleston, South Carolina, Court of Common Pleas (89-10-66), September 14, 1992.

98. Consent Order of Dismissal, David H. Lucas, Plaintiff, v. South Carolina Coastal Commission, an agency of the State of South Carolina, Defendant, County of Charleston, South Carolina, Court of Common Pleas (89-10-66A), July 12, 1993.

99. According to Lucas, he threatened a civil rights lawsuit because the SCCC had denied a permit to build on the property, which was discriminatory because they had issued permits for similarly situated properties. Upon threat of the lawsuit, the SCCC entered into negotiations with Lucas to settle the case. Lucas, Lucas vs. The Green Machine, 251. In the meantime, the SCCC approved a permit to build a 5,000 square foot home on lot 24 on 17 June, 1993, with the conditions that if the structure becomes situated on active beach that Lucas must remove it, and that Lucas must agree to hold the SCCC harmless should something harmful happen to the structure or its occupants. South Carolina Coastal Council Permit, David Lucas, permittee, permit number CC-93-143, issued June 17, 1993.

100. Echeverria, “A Troubling New Ruling on Property Rights.”

101. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

102. Dunlap, “Resolving Property ‘Takings’.”

103. Ingwerson, “High Court Rules on Property.”

104. McClendon, “Lucas Ruling: Shifting Sands,” 30.

105. Dunlap, “Resolving Property ‘Takings’.”

106. Echeverria, “A Troubling New Ruling on Property Rights.”

107. Wyckoff, “The Implications of Lucas on Planning and Zoning,” 11.

108. Wyckoff, “The Implications of Lucas on Planning and Zoning,” 11.

109. Pelham, “Innovative Growth Control Measures,” 891–2.

110. Heckel, “The Manoa Valley Special District Ordinance.”

111. Hope Babcock, “Should Lucas v. South Carolina Coastal Council protect where the wild things are?” 2.

112. Wyckoff, “The Implications of Lucas on Planning and Zoning,” 13.

113. South Carolina Coastal Council, Appellant v. David H. Lucas, Respondents, South Carolina Supreme Court (90-38), November 20, 1992.

114. Dunlap, “Resolving Property ‘Takings’.”

115. O'Leary, “Five Trends in Government Liability under Environmental Laws.”

116. Kelly, “Lessons from Lucas,” 13.

117. Kendall, “Preserving South Carolina's Beaches.” See also Ausness, “Wild Dunes and Serbonian Bogs,” 437–71.

118. Randall, “Coastal Development Run Amuck,” 183–5.

119. Charleston County Auditor, “Charleston County Online Property Records.”

120. Ibid.

121. Brinkley, “Coalition Plans to Push ‘Takings Law’.”

122. Beach and Connolly, “A Retrospective on Lucas v. South Carolina Coastal Council,” 14–16.

123. Records of registered nonprofit organizations from Washington D.C. show that the organization has since been dissolved. Washington, D.C. Department of Consumer and Regulatory Affairs, n.d. “Online Organization Registration.”

124. Sutton, “Constitutional Taking Doctrine,” 505–17.

125. Nelson, “Beachfront Management on the Isle of Palms,” 315–25.

126. Ausness, “Wild Dunes and Serbonian Bogs,” 437–71.

127. Binkley, “Coalition Plans to Push ‘Takings Law’,” S.1.

128. Daniel R. Mandelker, “Of Mice and Missiles,” 294–95.

129. Camden Lewis, telephone interview with Sarah Sisser, April 29, 2010.

130. David J. Bederman, email to Sarah Sisser, April 28, 2010.

131. William L. Want, telephone interview with Sarah Sisser, April 23, 2010.

132. Lucas, Lucas vs. The Green Machine, 218.

133. William L. Want, telephone interview with Sarah Sisser April 23, 2010.

134. David Lucas, telephone interview with Sarah Sisser, April 26, 2010.

135. Binkley, “Coalition Plans to Push ‘Takings Law’,” S.1.

136. Platt, “Evolution of Coastal Policies in the United States,” 253–75.

137. Wyckoff, “The Implications of Lucas on Planning and Zoning,” 11.