m a r i n e advice 



Legal Precedents Loom in ivcas Case 



In 1988, the hallowed halls of the 

 U.S. Supreme Court probably seemed 

 an unlikely forum for a lawsuit that 

 cropped up when the S.C. Coastal 

 Council barred David Lucas from 

 building on two $975,000 beachfront 

 lots. 



But the nation's highest court was 

 exactly where Lucas vs. S.C. Coastal 

 Council landed. 



Now, four years later, the case 

 continues to unfold, and it is pushing 

 the bounds on existing laws. It pits 

 property owners and their right to use 

 their land as they please against 

 regulatory agencies acting on the 

 public's behalf to restrict uses of 

 certain areas. 



The verdict is still out, but the high 

 court has indicated that Lucas should 

 be entitled to compensation for the 

 value of his property. The case has 

 been remanded to the S.C. Supreme 

 Court to determine whether construc- 

 tion on Lucas' property would violate 

 the state's nuisance and property law. 



Walter Clark, coastal law specialist 

 for UNC Sea Grant, says circum- 

 stances that gave rise to the Lucas case 

 are not unusual, especially on the coast. 

 There has been an evolution of 

 regulations in recent years to deal with 

 a growing number of people competing 

 for natural resources and land, particu- 

 larly environmentally sensitive and 

 hazardous areas, he says. 



But government intervention often 

 chafes against our principles of 

 freedom to do with our property as we 

 please. And there has been a recent 

 backlash against these regulations, 

 Clark says. 



The high court was trying to walk a 

 safe line between these two interests. 



The court realized there has to be 

 some limit on how far government can 

 go in regulating the use of property. 



But at the same time, the court contin- 

 ued to see the need for regulation to 

 respond to an increasing population 

 and development of areas that could be 

 impacted. 



This conflict between individual 

 rights and the public good has earned 

 the Lucas case a large audience — 

 landowners, land-use planners, 

 environmentalists and local govern- 

 ments. 



This case speaks to the larger issue 

 of taking property — beachfront or not, 

 Clark says. 



"Whatever principle Lucas finally 

 espouses could speak to other regula- 

 tions," he says. "It could have a fairly 

 far-reaching impact beyond just the 

 oceanfront to wetlands and other land- 

 use restrictions." 



Some observers fear that a verdict 

 in Lucas' favor will have a chilling 

 effect on environmental regulation, 

 making local governments reluctant to 

 restrict land uses in ways to protect a 

 natural resource or the public welfare. 



Even now, as the case hangs in 

 legal limbo, there is a degree of 

 uncertainty. 



"Until there is some clarity, the 

 people who pass local ordinances or 

 state laws might be a little bit nervous 

 about the effects their rules have on 

 property because they will worry about 

 being sued," Clark says. 



The roots of the case reach back to 

 1986. Lucas had purchased two lots on 

 the Isle of Palms, where no permits to 

 build were required from the S.C. 

 Coastal Council. 



But in 1988, the state enacted the 

 Beachfront Management Act to 

 preserve its coastlands by restricting 

 their use and by establishing a 40-year 

 plan for moving construction setback 

 lines landward. 



Lucas' property was on the 



coastward side of the setback line, and 

 as a result, was no longer eligible for 

 construction. 



He filed suit against the Coastal 

 Council, arguing that the act and its 

 construction ban were a taking of his 

 property without compensation. And 

 because he was deprived of his 

 property's entire value, he was due 

 compensation regardless of whether the 

 state had a legitimate reason for passing 

 the act. A jury agreed and awarded him 

 $1.2 million. 



The Coastal Council argued on 

 appeal to the S.C. Supreme Court that a 

 taking usually doesn't occur when a 

 regulation is intended to prevent serious 

 public harm. And the state's high court 

 reversed the jury's award. 



This exchange poised the U.S. 

 Supreme Court to hear the case and 

 possibly reshape government's author- 

 ity to grant and deny landowners 

 certain uses of their property. 



In June, the court voted to remand 

 the case to the S.C. Supreme Court to 

 determine whether the state's nuisance 

 and property law would prohibit Lucas' 

 development plans. If not, he should be 

 compensated for the land, the court has 

 suggested. 



Though the ruling was far from 

 handing a decisive victory to either 

 side, the case has the potential to shift 

 the delicate balance between private 

 property rights and regulating for the 

 public good. 



Sea Grant is making available a 

 one-hour videotaped discussion of the 

 case among a group of experts with 

 extensive backgrounds in ocean and 

 coastal policy, planning and land-use 

 law. To order the videotape, send a 

 check or money order for $15 made 

 payable to UNC Sea Grant, Box 8605, 

 NCSU, Raleigh, NC 27695. 



By Jeannie Faris 



20 NOVEMBER/DECEMBER 1992 



