1042
Blackmun, J., dissenting
The Court, however, will not be denied: It determines that petitioner's "temporary takings" claim for the period from July 1, 1988, to June 25, 1990, is ripe. But this claim also is not justiciable.4
From the very beginning of this litigation, respondent has argued that the courts
"lac[k] jurisdiction in this matter because the Plaintiff has sought no authorization from Council for use of his property, has not challenged the location of the baseline or setback line as alleged in the Complaint and because no final agency decision has been rendered concerning use of his property or location of said baseline or setback line." Tr. 10 (answer, as amended).
Although the Council's plea has been ignored by every court, it is undoubtedly correct.
Under the Beachfront Management Act, petitioner was entitled to challenge the setback line or the baseline or erosion rate applied to his property in formal administrative, followed by judicial, proceedings. S. C. Code Ann. § 48-39- 280(E) (Supp. 1991). Because Lucas failed to pursue this administrative remedy, the Council never finally decided whether Lucas' particular piece of property was correctly categorized as a critical area in which building would not be permitted. This is all the more crucial because Lucas argued strenuously in the trial court that his land was perfectly safe to build on, and that his company had studies to prove it. Tr. 20, 25, 36. If he was correct, the Council's
4 The Court's reliance, ante, at 1013, on Esposito v. South Carolina Coastal Council, 939 F. 2d 165, 168 (CA4 1991), cert. denied, post, p. 1219, in support of its decision to consider Lucas' temporary takings claim ripe is misplaced. In Esposito the plaintiffs brought a facial challenge to the mere enactment of the Act. Here, of course, Lucas has brought an as-applied challenge. See Brief for Petitioner 16. Facial challenges are ripe when the Act is passed; applied challenges require a final decision on the Act's application to the property in question.
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