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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