Footprints in the Shifting Sands of the Isle of Palms: A Practical Analysis of Regulatory Takings Cases

It was not until the last day of the term, June 29, 1992, that the Court decided Lucas. By that time, interest could not have been greater. At issue was the validity of a regulation that prohibited all permanent development of the plaintiff\u27s two beachfront lots. The South Carolina Supreme Court upheld the regulation by a 3-2 margin because it prevented a “great public harm.” The U.S. Supreme Court reversed that determination and remanded the case to determine whether South Carolina\u27s common law of nuisance could prohibit the construction of single-family housing on the lots. The fractured Court delivered an opinion in which five justices formed a majority, one concurred, another submitted a separate “statement,” and two vigorously dissented. A close examination of the divided opinion reveals a faint trail to follow in exploring regulatory takings jurisprudence; the decision left shallow footprints in the shifting coastal sands of South Carolina where the contested regulation prevented the development of the plaintiff\u27s land