Whether a State Can Use the Public Trust Doctrine to Deprive an Owner of His Right to Develop His Land
Sam McQueen owns two lots in an almost fully developed residential subdivision adjacent to a manmade drainage canal. The South Carolina Department of Health & Environmental Control is attempting, without compensation, to prevent McQueen from developing his property on the basis of the public trust doctrine. McQueen bought his two lots in 1961 and 1963 respectively. For financial and personal reasons, he did not seek to fill and develop the lots until 1991, when he sought permits to bulkhead his lots for erosion control. Ultimately, the State denied the permits in 1993. McQueen brought an action for a regulatory taking of the lots in the South Carolina Court of Common Pleas, which found a total regulatory taking. The South Carolina Court of Appeals affirmed the taking but reversed for a re-assessment of damages. On further appeal, the South Carolina Supreme Court reversed the takings finding on the grounds of the so-called “notice rule,” which held that a party on notice of a regulatory impact on its property was barred from contesting the regulation as a taking. In this case, the South Carolina Supreme Court applied the rule to bar McQueen from developing his wetland property because he failed to apply to develop his property over the years in the face of ever more stringent wetlands regulations. The United States granted certiorari and remanded for reconsideration in light of Palazzolo v. Rhode Island, 533 U.S. 606 (2001), which prohibited the use of “notice rule” as a bar to regulatory takings claims. On remand, the South Carolina did not address the notice rule, but instead determined that McQueen was prohibited from developing his property by the public trust doctrine, even though the decisions below had made no determination concerning the extent or effect of the public trust on the property.
McQueen again petitioned for certiorari and NELF filed an amicus brief in support for his petition on behalf of itself, Anthony Palazzolo (whom NELF now represents on remand of that Supreme Court case), the American Farm Bureau Federation, and the South Carolina Farm Bureau Federation. NELF argued that the Supreme Court should take this case because South Carolina’s expansion of the public trust beyond its historical roots to all marshland is contrary to constitutional principles and the expectations of thousands of owners of littoral and riparian properties. The South Carolina Supreme Court, NELF argued, should not be permitted to break with long-established precedents in a result-oriented decision to prevent McQueen from receiving compensation for the State’s regulations which prohibited development of his property. The Supreme Court denied McQueen’s petition for certiorari.
Sam McQueen owns two lots in an almost fully developed residential subdivision adjacent to a manmade drainage canal. The South Carolina Department of Health & Environmental Control is attempting, without compensation, to prevent McQueen from developing his property on the basis of the public trust doctrine. McQueen bought his two lots in 1961 and 1963 respectively. For financial and personal reasons, he did not seek to fill and develop the lots until 1991, when he sought permits to bulkhead his lots for erosion control. Ultimately, the State denied the permits in 1993. McQueen brought an action for a regulatory taking of the lots in the South Carolina Court of Common Pleas, which found a total regulatory taking. The South Carolina Court of Appeals affirmed the taking but reversed for a re-assessment of damages. On further appeal, the South Carolina Supreme Court reversed the takings finding on the grounds of the so-called “notice rule,” which held that a party on notice of a regulatory impact on its property was barred from contesting the regulation as a taking. In this case, the South Carolina Supreme Court applied the rule to bar McQueen from developing his wetland property because he failed to apply to develop his property over the years in the face of ever more stringent wetlands regulations. The United States granted certiorari and remanded for reconsideration in light of Palazzolo v. Rhode Island, 533 U.S. 606 (2001), which prohibited the use of “notice rule” as a bar to regulatory takings claims. On remand, the South Carolina did not address the notice rule, but instead determined that McQueen was prohibited from developing his property by the public trust doctrine, even though the decisions below had made no determination concerning the extent or effect of the public trust on the property.
McQueen again petitioned for certiorari and NELF filed an amicus brief in support for his petition on behalf of itself, Anthony Palazzolo (whom NELF now represents on remand of that Supreme Court case), the American Farm Bureau Federation, and the South Carolina Farm Bureau Federation. NELF argued that the Supreme Court should take this case because South Carolina’s expansion of the public trust beyond its historical roots to all marshland is contrary to constitutional principles and the expectations of thousands of owners of littoral and riparian properties. The South Carolina Supreme Court, NELF argued, should not be permitted to break with long-established precedents in a result-oriented decision to prevent McQueen from receiving compensation for the State’s regulations which prohibited development of his property. The Supreme Court denied McQueen’s petition for certiorari.
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