(Concurring in part and dissenting in part.):
I agree the record contains sufficient evidence to support Coastal Council’s decision to deny the permits at issue. I also concur that delays in the permitting process are irrelevant to the merits of this appeal. However, I respectfully disagree with the majority that a taking has occurred, believing the facts of this case to be clearly distinguishable from those in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). I would reverse the master on the takings issue.
We are bound by the factual findings of the Coastal Council unless no substantial evidence exists to support them. Guer*602ard v. Whitner, 276 S.C. 521, 280 S.E.2d 539 (1981). Council’s facts follow.
McQueen bought the 53rd Avenue lot in 1961 for $2,500 and the 48th Avenue lot in 1963 for $1,700. Each lot is valued at $22,500 for tax purposes.
Both unimproved lots are located on filled, dead-end, salt water canals. Both have “substantially reverted to wetlands” and constitute “predominantly critical area.” Most, if not all, of the other lots in this area contain improvements and some type of bulkhead or retaining wall.
The 48th Avenue lot contains “borrichia, spartina patens and spartina alterniflora.” It is “high marsh,” which “serves the vital function of acting as a buffer and a filter from sediments and run-off.” The lot provides “habitat for birds, shellfish, and fish.”
The 53rd Avenue lot, which has a lower elevation, attains “greater tidal flow.” It is “unvegetated, filled with brack and other decaying critical area plants,” having “tidal inundation reaching from the canal to the road.” The lot serves as an “integral part of the estuarine environment as marine transport areas, for larval forms of shrimp and other marine life.”
Even though erosion on the lots began around 1974, as late as 1989 the condition was still “not characterized as severe.” McQueen “took no action to protect his property from erosion” from the time he purchased it until he initiated these applications.1
The majority finds this case remarkably similar to Lucas. I believe these facts are quite distinguishable from those in Lucas.
Lucas paid $975,000 for two lots, intending to build residential homes. Lucas, 505 U.S. at 1006, 112 S.Ct. at 2888. Two years later, the state passed legislation which basically prohibited Lucas from building habitable structures on his land. Id. at 1007, 112 S.Ct. at 2888. The United States Supreme Court held Lucas’ ability to build on his property was contained in the “bundle of rights” he acquired when he first bought the *603property. Id. at 1027, 112 S.Ct. at 2899. The Court reasoned under these facts the state had taken Lucas’ property without just compensation in violation of the Fourteenth Amendment, if it sought to regulate uses which were not already prohibited by background principles of nuisance and property law. Id. at 1031,112 S.Ct. at 2901.
McQueen bought his property in the early 60’s. The state Legislature passed the Coastal Zone Management Act, which prohibited the filling of marsh, in 1977. ’ Over time, nature began reclaiming McQueen’s lots. McQueen did nothing. McQueen’s neighbors sought and gained permits to build bulkheads or retaining walls to protect their property from erosion. McQueen did nothing. McQueen met with a representative of Coastal Council sometime between 1982 and 1984 to ascertain his alternatives. Afterwards, McQueen did nothing. The process of erosion continued, until McQueen’s property basically reverted back to marshland. Still, McQueen did nothing. Finally he applied for a bulkhead and backfill permit in 1991 so that he could build on his property. Now, McQueen wants the state to compensate him because he says a state regulation has made his property economically worthless.
The majority finds “the case at bar epitomizes a remarkable similitude to Lucas.” It goes on to point out both Lucas and McQueen were denied the right to build on their property because regulations with certain restrictions were passed; these regulations were not in force when they first purchased their property. However, McQueen was not prohibited from building a house. He was prohibited from backfilling marsh, which he would not have had to do at all had he been a responsible landowner.
Even though the court in Lucas to some extent enumerated a bright-line test for ascertaining whether a taking had occurred, it still required a limited case-by-case analysis by remanding for South Carolina to make a determination whether the prohibited action violated any principles of state nuisance and property law. Lucas, 505 U.S. at 1031, 112 S.Ct. at 2901. In remanding the Lucas case to the state of South Carolina, Justice Scalia, writing for the majority, explained the state had to do more than “proffer the legislature’s declaration that the uses Lucas desires are inconsistent with the public interest.” Id. at 1031, 112 S.Ct. at 2901. Rather, it had to *604“identify background principles of nuisance and property law that prohibit the uses he (Lucas) now intends in the circumstances in which the property is presently found.” Lucas, 505 U.S. at 1031,112 S.Ct. at 2902 (emphasis added). See also 106 Harv.L.Rev. 163 at 272-73 (1992). (“[Regulation that renders property valueless will be exempt from compensation only when it prohibits that which common-law nuisance principles or other ‘background principles’ have always prohibited.”) (emphasis added).2
In Lucas, Justice Scalia quoted Lord Coke, who said, “[w]hat is the land but the profits thereof?” Lucas, 505 U.S. at 1017,112 S.Ct. at 2894 (quoting 1 E. Coke, Institutes, ch. 1, § 1 (1st Am.Ed.1812)). In 1994, the Federal Circuit of the United States Court of Appeals, interpreting Lucas in light of the entire history of regulatory takings, held courts must consider whether or not the property owner had distinct “investment-backed expectations” in determining whether or not a regulatory taking had occurred. Loveladies Harbor, Inc., et al. v. United States, 28 F.3d 1171 (Fed.Cir.1994). See also Property Myths, Judicial Activism, And The Lucas Case, 23 Envtl.L. 907, 916 (1993) (“In the final analysis, from a property lawyer’s perspective, Lucas is a flawed decision because it assumes that property rights amount to developmental rights.”).
Under a Lucas and Loveladies Harbor analysis, I do not believe the state has taken McQueen’s property. McQueen sat idly by for almost thirty years, observing his land eroding as most of his neighbors applied for and received permits to build bulkheads or retaining walls to protect their property. Meanwhile, nature reclaimed McQueen’s property. As the hearing officer stated in his report, “[t]his lot, by the passage of time and tides for the past 30 years, has become unbuildable.” (Emphasis added).
The majority finds the fact that McQueen’s neighbors have been granted permits indicates McQueen should be granted this same right. The majority cites the following language *605from Lucas: “The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition ... So does the fact that other landowners, similarly situated, are permitted to continue the use denied to the claimant.” Lucas, 505 U.S. at 1031, 112 S.Ct. at 2901. However, the omitted phrase reads as follows: “[T]hough changed circumstances or new knowledge may make what was previously permissible no longer so.” Id. The record contains no evidence any of McQueen’s neighbors asked for permits to backfill marsh, the prohibited activity here. Rather, prior to the point in time when their property would need backfill, they apparently requested and received permits for bulkheads or retaining walls.
Moreover, Coastal Council held McQueen took no actions to protect his investment, and therefore failed to show he had “investment-backed expectations” under Lucas and Loveladies Harbor. As Council succinctly stated, McQueen’s “expectations are relative to the measures he took to protect his investment.”
I agree with Council. McQueen knew his lots were eroding and failed to act to protect his property. Now that the situation has become so critical, in order to build, he has had to request permission to violate state regulations prohibiting backfilling marsh, he cannot claim entitlement to compensation because the state “took” his property.
I would reverse on the takings issue.
. The hearing officer, in his Findings of Fact and Recommendations, reported McQueen met a Coastal Council representative at his lots between 1982 and 1984 to discuss the options concerning his property.
. In a case such as McQueen's, where a property owner does nothing, even though cognizant external forces are detrimentally affecting his property, analogies can be drawn to background principles of state property law such as adverse possession, staleness of claims, and even the statute of limitations.