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16 Urb. St. & Loc. L. Newsl. 1 (1992-1993)

handle is hein.journals/stlolane31 and id is 1 raw text is: Section of Urban, State and Local Government Law URBAN, STAT1E ad LOCAL LAW NEWS LETTER The Section serves as a collegial forum for its members, the profession, and the public to provide leadership and educational resources in urban, state, and local government law and policy. The Lucas Decision: New Challenges for Land-Use Lawyers By Thomas G. Pelham Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), presented the Supreme Court with still another opportunity to bring some much-needed clarity to the law of regulatory takings. Instead, the Court's 6-3 majority decision, authored by Justice Antonin Scalia, raises more questions than it an- swers. The decision is most noteworthy for a new, imprecisely articulated per se rule, with an equally ill-defined exception, to be applied in total regulatory taking cases. However, the Court also rejected the presumption of validity traditionally accorded legis- lation and shifted the burden of proof to the state, at least in total regulatory taking cases. To further com- plicate the plot, Justice Scalia's majority opinion is peppered with intriguing dicta and enigmatic foot- notes that create further doubt and suspicion about the intended import of the decision. Consequently, Lucas ensures that the takings issue will continue to provide both private and public sector lawyers with challenging work. In Lucas, the Court created another categorical rule for determining whether regulatory action re- sults in a compensable taking. Generally, the Court has resolved regulatory taking claims through a bal- ancing process of ad hoc, factual inquiries that fo- cus on certain factors. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978). For specific situations, the Court has created cate- gorical rules that recognize compensable takings without case-specific inquiry. For example, in Lor- etto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Court held that regulations that compel a permanent physical occupation of property result in a per se compensable taking regardless of the economic impact on the property. Lucas extends this categorical approach by establishing a rule that a compensable taking occurs if a regulation denies all economically beneficial and productive use of land. The rule is subject to a significant exception: Com- pensation will not be required if the uses prohibited by the regulation were also proscribed by back- ground principles of the State's law of property and nuisance. The first challenge for land-use practitioners is to decipher the new rule. What does 'all economically beneficial use mean? Unfortunately, the intended meaning of this central element of the rule is ob- scured by the imprecision with which the Court dis- cusses it. Justice Scalia uses more than twenty different phrases-e.g., all economically beneficial or productive use, economically viable use, all (continued on page 14) ar ou 6ndr1 -Fall Council Meeting November 13-15, 1992, Rancho Bernardo Inn San Diego, CA Basics of Airport Law November 16-17, 1992 St. Anthony Hotel San Antonio, TX Y' Recovering and Defending Claims for Damages and Attorney Fees in Special Education and Civil Rights Litigation in cooperation with NOLPE November 19, 1992 Marriott Camelback Inn Scottsdale, AZ De Ignn Muiathiss Chair's Mess age 2 Membership Report, page 3 1992-93 Committee Officers, page 4 Section Commended, page 5 Designing Municipal Ethics Codes, page 6 Supreme Court Watch, page 9 Washington's Labyrinthine Ways, page I11 Vol. 16, No. 1, Fall 1992

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