THOMAS MAYO

When the Supreme Court handed down its opinions in the Pennsylvania abortion case, something was lost: the fact that the big story on that last day of the 1991 term was the court's opinion in a (yawn) land use case.

Granted, the abortion case made great copy. But what really had changed when the hue and cry over Casey was over? After Webster, the court had a slim 5-4 majority in favor of retaining the basic principles of Roe vs. Wade. After Casey: ditto. After Webster, the court's "strict scrutiny' of state restrictions on abortion choice seemed to be replaced by a test that looks for "undue burdens' on the right to choose. After Casey: ditto. And after Webster, it looked as though the abortion debate had mostly shifted to the state legislatures, which would have broad but not unlimited discretion to add hurdles and hassles to the abortion rights of women. After Casey: ditto.

In the other case handed down the same day as Casey, however, the court drastically altered the balance of power between business forces and land developers, on the one hand, and governmental land use and environmental regulators on the other. The case -- Lucas vs. South Carolina Coastal Council -- involved Mr. Lucas' purchase of South Carolina beachfront property for nearly $1 million in 1986.

In 1988, before Mr. Lucas could build and sell single-family homes on his property, the South Carolina Legislature passed a beachfront preservation act that declared the beaches and dunes of South Carolina to be "critical areas' that might be endangered by development. The result of overdevelopment could be the loss of property and even life in the event of another storm as devastating as 1989's Hurricane Hugo. Pursuant to the statute, the Coastal Council evaluated the suitability of Mr. Lucas' property for development and denied him permission to build.

The U.S. Supreme Court held (contrary to the South Carolina Supreme Court) that the state's prohibition was total deprivation of all economic value of the land for which the state would have to pay, unless the buildings Mr. Lucas proposed would be unlawful -- nuisances, for example -- in common law. In reaching this conclusion, the court either mangled or ignored the better part of a century of its own prior holdings that rejected such a categorical approach to determining when a governmental "taking' had occurred for which "just compensation' had to be paid under the Fifth and Fourteenth amendments to the Constitution.

The court's new rule is wacky for lots of technical reasons that are well described by the dissenting opinions of Justices Harry Blackmun and John Paul Stevens. Two points, however, deserve special mention. The first is that the effect of the court's holding undoubtedly will be to encourage landowners and developers to challenge environmental and land-use regulations that reduce the value of land by 99 percent, and 95 percent, and so on down. It will be difficult for some courts to resist the suggestion that a rule that gives a plaintiff like Mr. Lucas 100 percent of the value he has lost is arbitrary and capricious when it gives nothing to a neighbor whose property has lost 99 percent of its value. The chilling effect on regulators will be enormous.

Second, by creating an exception to the rule requiring payment for land uses that would be prohibited by the common law, the court fell prey to two fallacies. The common law is the law judges make (or "find,' depending upon your judicial philosophy) out of earlier cases, unaided by legislation or regulations. Many rules of tort, contract and property law are examples of "the common law.' The court' s exception seems to favor this judge-made common law over the law created by legislatures, a distinction that the court itself has repeatedly rejected over the past century.

Stranger still, the same four justices who dissented in the Casey case combined to form the core of the majority in the Lucas case. These justices -- who profess such faith in the ability of state legislatures to deal equitably and effectively with the agonizing question of abortion -- joined in an opinion in Lucas that is profoundly distrustful of those same legislators when it comes to balancing the environmental needs of the states against the property interests of landowners.

Maybe it's a good thing the court's summer recess came when it did. The justices need a rest.

Tom Mayo is an associate professor of law at Southern Methodist University and is of counsel to the Dallas law firm of Haynes and Boone.

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