The Story of Lucas: Environmental Land Use Regulation Between Developers and the Deep Blue Sea
Carol M. Rose
University of Arizona - James E. Rogers College of Law
ENVIRONMENTAL STORIES, Richard J. Lazarus and Oliver A. Houck, eds., Foundation Press, 2005
Yale Law School, Public Law Working Paper No. 96
This background study of the Lucas case focuses on legislative efforts to protect the evocative and productive lands of coastal areas. A starting point is the failed effort in the early 1970s to enact a Federal Land Use Act that would encourage statewide land use planning. The Coastal Zone Management Act (CZMA) was in effect a remnant of this larger effort, successful because it isolated opposition by narrowing the regulatory ambit to the popular coastal area. State coastal programs often replicated the CZMA's pattern of isolating opposition by focusing on a relatively narrow coastal area. This strategy, however, ran two risks: first, the environmental risk that a truncated "coastal zone" would miss important coastal influences outside that zone; and second, the jurisprudential risk that narrowly drawn coastal laws would be caught in an evolving "takings" jurisprudence, fueled by an increasingly vocal property rights movement. Both risks became clear in California's pioneering and aggressive coastal program, but the issues came to a head not in California but in South Carolina, as this state (following environmental theories developed in neighboring North Carolina) attempted to orchestrate a "retreat" from beachfront development. South Carolina's efforts ran into David Lucas' "takings" claim that the new regulations made his beachfront property lose all economic value. When the Supreme Court accepted this theory, the decision galvanized property rights proponents but also set off a wave of criticism. Subsequent events have initiated some reconsideration of traditional takings theories, since the decision does not fit well into standard political, economic or fairness theories of takings. The author concludes that takings jurisprudence is best understood as part of the management of regulatory transitions.
Number of Pages in PDF File: 44
Keywords: property, takings, environment, land use, environment, coastal zone management
JEL Classification: K11, K32Accepted Paper Series
Date posted: April 19, 2005
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