Nollan v. California Coastal Commission

Appellant
James and Marilyn Nollan
Appellee
California Coastal Commission
Appellant's Claim
That a stipulation by the California Coastal Commission, whereby the appellant was required to grant the public an easement to pass across their beachfront property, constituted a violation of the Takings Clause in the Fifth and Fourteenth Amendments.
Chief Lawyer for Appellant
Robert K. Best
Chief Lawyer for Appellee
Andrea Sheridan Ordin, Chief Assistant Attorney General of California
Justices for the Court
Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Antonin Scalia (writing for the Court), Byron R. White
Justices Dissenting
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
26 June 1987
Decision
The Court ruled that although the commission's conditioning of appellant's rebuilding permit on the granting of a public easement might have been lawful if it had "substantially furthered governmental purposes," the measure in question did not. Rather, it constituted a violation of the Takings Clause in theFifth Amendment, and was therefore struck down by the Court.
Significance
Thomas Jefferson expressed in the Declaration of Independence that no man should be stripped of "life, liberty, and the pursuit of happiness." In its original formulation, however, by the British philosopher John Locke, the last ofthese had been "the pursuit of property." Constitutional protection of theserights is embodied in the Fifth Amendment to the Constitution, which continues in part that " . . . nor shall private property be taken for public use, without just compensation." Nollan figured into a late twentieth-century movement to reestablish property rights, which had first begun to suffer under the New Deal policies of President Franklin D. Roosevelt.
Mr. and Mrs. Nollan Build Their Dream Home
For years, James and Marilyn Nollan had leased a parcel of beachfront property in Ventura County, California. The site near Santa Barbara, perhaps two hours' drive north of Los Angeles, was popular for swimming and sunbathing: a quarter mile to the north lay the Faria County Park, a public beach, and 1,800feet to the south was another public area known as "The Cove." The property'soceanside boundary had been determined in conjunction with mean high tide. Between the shoreline and the main portion of the property stood an eight-foot-high concrete sea wall. Hence between the sea wall and the water, even at high tide, there was a strip of sand which constituted a private beach belonging to the property leased by the Nollans.
The land contained a bungalow, which the Nollans regularly subleased to others, but after years of use as a rental property, the 504-square-foot house needed replacing. Meanwhile, the Nollans had decided to purchase the lot, whichthe owners said they could do on condition that they demolish the bungalow and build a new home there. In accordance with this desire and with state law,the couple went to the California Coastal Commission to request a coastal development permit. They submitted an application on 25 February 1982 in which they proposed demolition of the bungalow and its replacement with a three-bedroom house comparable to those in the neighborhood.
The Nollans were told that the commission would grant their application--if they agreed to allow the public an easement, or a right to pass through theirproperty. According to this easement, pedestrians could use the portion of the Nollans' property between the high-tide line and the seawall as a walkway to move between the public beaches on either side. The Nollans protested, andthe commission overruled their objections. On 3 June 1982, the couple filed apetition for writ of administrative mandamus, an injunction orderinga public official to undertake a specific action, with the Ventura County Superior Court. The court agreed with their claim that the commission's restriction on their development could not be imposed in the absence of proof that building their house would actually have a clear and negative impact on publicaccess to the beach. The court remanded the case to the commission for a fullhearing.
At the hearing, officials for the commission announced that the new house would add to "a `wall' of residential structures" that would "psychologically" prevent the public "from realizing [that] a stretch of coastline exists nearbythat they have every right to visit." This "burden" on public access could only be offset by providing the public with an easement across the Nollans' property. The Nollans then filed a supplemental petition with the superior court, this time arguing that the commission violated the Takings Clause of the Fifth Amendment, which had been applied to the states in the Fourteenth. Againthe superior court ruled for the petitioners, and ordered the Commission tostrike the permit condition.
The Commission appealed to the California Court of Appeals; meanwhile the Nollans, without notifying the Commission, satisfied the condition of their purchase option by tearing down the bungalow. According to the later record of the U.S. Supreme Court, they built their house and bought the property, all infulfillment of the plan they apparently had with the property's earlier owners--but without the approval of the commission. The court of appeals reversedthe ruling of the superior court, and ruled in favor of the commission. Its opinion on the Coastal Act was based on its reading of the California Public Residence Code Annotated. The precedent for its ruling on the constitutional question came from an earlier California case involving similar issues.
When the Nollans appealed to the Supreme Court of the United States, they raised only the constitutional issue. Briefs of amici curiae (friends ofthe court) urging affirmance of the court of appeals's ruling were filed by officials representing the states of Alabama, Arkansas, Connecticut, Delaware,Florida, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oregon, Rhode Island, Tennessee, Texas, Vermont,Washington, West Virginia, and Wisconsin--29 states in all--as well as the Council of State Government, Designated California Cities and Counties, and the Natural Resources Defense Council. Solicitor General Fried of the United States filed a brief urging reversal. The California Association of Realtors and the National Association of Home Builders also filed briefs.
Limits on the State's Power to Take
The Court voted, 5-4, to reverse. Justice Scalia, delivering the opinion forthe majority, began by pointing out that

Although the outright taking of an uncompensated, permanent, public-access easement would violate theTakings Clause, conditioning appellants' rebuilding permit on their grantingsuch an easement would be lawful land-use regulation if it substantially furthered governmental purposes that would justify denial of the permit.

In other words, if the government had some good reason to effectively lay claim on the land--and if it compensated the landowner for taking the property--then an action such as that of the commission with regard to the Nollans would be constitutional. But such was not the case in the present situation "since the condition does not serve public purposes related to the permit requirement." Among the reasons for the commission's demand had been that the publiccould not see the beach, and therefore would not be fully aware of their right to walk on it. How, Scalia asked by implication, would an easement across the beach side of the property make it easier to see the beach from the road,on the other side of the house? He further dismissed the commission's claim that the access requirement was part of a "comprehensive program" by the stateto increase public access to the beach. If this was so, Scalia indicated, the state would have to pay the cost for this, and not "compel coastal residents alone to contribute to the realization of that goal."
Scalia devoted considerable attention to refuting the dissent of Justice Brennan, and early in his opinion, he wrote: "To say that the appropriation of apublic easement does not constitute the taking of a property interest but rather (as Justice Brennan contends) `a mere restriction on its use,' is to usewords in a manner that deprives them of their ordinary meaning." The Court had held in Loretto v. Teleprompter Manhattan CATV Corp. (1982) quotingKaiser Aetna v. United States (1979) that "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" In the present situation, although the commission had not proposed to take the Nollans' property per se, Scalia wrote that the rule nonetheless imposed a "permanent physical occupation" by creatinga situation in which "individuals are given a permanent and continuous rightto pass to and fro, so that the real property may continuously be traversed,even though no particular individual is permitted to station himself permanently upon the premises."
Scalia then addressed the question of whether the condition of an easement constituted taking, and he used as his standard the relationship between the condition and its purported aim. The "lack of nexus" between the easement and its ostensible purpose "converts that purpose to something other than what itwas." If the commission had truly been interested in whether people could seethe beach from the road, Scalia suggested, it might have issued limitationson the height of the house--which would have been perfectly lawful. But in the present situation the purpose was "quite simply, the obtaining of an easement to serve some valid government purpose, but without payment of compensation." This, Scalia held, was "an out-and-out plan of extortion."
Dissent: "It Is Private Landowners Who Are the Interlopers"
Justices Blackmun, Brennan, Stevens, and Marshall all dissented. Of the dissenting opinions, the one filed by Brennan, with which Marshall joined, was byfar the longest and most forceful. Brennan urged greater flexibility for states to make rules affecting private property, and criticized the Court's "cramped standard" of interpreting restrictions on state authority. As for Scalia's claim that the easement was invalid because it had nothing to do with the condition it was supposed to address, Brennan held that the state was responsible for all aspects of public access to the public tidewaters. This included"visual access" (in the commission's words) from the road, as well as "lateral access" from beach to beach. To Brennan, this wide-ranging authority constituted "flexibility" on the state's part, and "The Court's insistence on a precise fit between the forms of burden and condition on each individual parcelalong the California coast would penalize the commission for its flexibility,hampering the ability to fulfill its public trust mandate."
Instead of expecting so much from the states, Brennan suggested, the Court should turn its attentions to another quarter: "The Court's demand for this precise fit," he wrote,

is based on the assumption that private landowners in this case possess a reasonable expectation regarding the use of their land that the public has attempted to disrupt. In fact, the situation is precisely the reverse: it is private landowners who are the interlopers.

In any case, "[t]he physical intrusion permitted by the deed restriction is minimal," and the Court had declared in Pruneyard Shopping Center v. Robins (1980) that physical access to private property could be permitted as long as it did not "unreasonably impair the value or use of [the] property."
In Brennan's view, California had done at least as much for the Nollans as the Nollans had done for California. It had allowed them to replace their tinyone-story bungalow home with a two-story house three times its size. Thus they had enjoyed an increase in their property values even with the easement--anincrease that, in Brennan's eyes, the state had given the Nollans by allowing them to spend their money on building the house. Furthermore, by imposing deed restrictions on other landowners along the beach, the commission had madeit possible for the Nollans to walk wherever they chose. If California had allegedly deprived the Nollans of the full value of their development, the problem was that the Nollans had flawed expectations, since the commission "wasunder no obligation to approve" the couple's proposal for the development oftheir property. In any case, Brennan wrote, quoting Andrus v. Allard (1979), "the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests."
Justices Blackmun and Stevens also issued dissenting opinions, though theirswere less clearly critical of the Nollans' claim that they had full rights totheir property. Blackmun took issue chiefly with the Court's concern for a "necessary correlation between the burden created by a development and a condition imposed pursuant to the State's police power to mitigate that burden," which he described as "an `eye for an eye' mentality."
Stevens, with whom Blackmun joined, made note of the Court's "remarkable ruling" in First English Evangelical Lutheran Church of Glendale v. County ofLos Angeles (1987), when it held that "local governments and officials must pay the price for the necessarily vague standards" of zoning and development laws. As Stevens noted, in San Diego Gas & Electric Co. v. San Diego (1981), Justice Brennan had proposed then that officials who made mistakes which hurt citizens--mistakes such as the Coastal Commission had apparently made--they should be liable for "temporary taking" of property and shouldbe punished severely. (Given the fact that Brennan was one of the dissentersin that case, however, it is likely that he meant this to be taken in some way other than literally--perhaps simply to make a point about a ruling with which he disagreed.) Stevens, observing that "I like the hat that Justice Brennan has donned today better than the one he wore in San Diego," concluded thathe agreed with Brennan in the present case.
Impact
Nollan belonged to a trend in favor of property rights, a reaction tothe statist movement that had begun in the era of Roosevelt and the New Deal.(The latter was in turn a reaction to abuses by big business in the name ofprivate property during the late nineteenth and early twentieth centuries.) After Nollan, landowners gained more victories in Lucas v. South Carolina Coastal Council (1992) and Dolan v. City of Tigard (1994). In the first of these, the Court upheld a landowner's right to receive compensation for a government coastal protection plan which rendered his land virtually unusable; in the second, the Court held that local governments must show"rough proportionality" between the conditions they imposed on people developing their land, and the alleged evils these conditions were intended to address. The issues raised in Nollan continue to be volatile ones, particularly in an era fraught with environmental concerns which encourage governments to place severe restrictions on land use--or even, in some disputed cases,to entirely deprive individuals of their land in the interests of protectingan endangered species.
Related Cases

• Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
  
• Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955).
  
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
  
• Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
  
• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
  
• First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
  
• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
  
• Dolan v. City of Tigard, 114 S. Ct. 2481 (1994).

Takings Clause of the Fifth and Sixth Amendments
The Taking Clause or "just compensation" principle is a provision of the Constitution that suggests that the government must compensate individuals for the confiscation of private property. In a 1922 opinion Justice Oliver WendellHolmes extended the Takings Clause to include situations where government regulation causes a significant decrease in the value of an individual's property.
Despite early efforts to define a general formula to determine when or if anindividual should be compensated for a taking, they are now dealt with on a case by case basis. There is some debate over the original intent of the Takings Clause. Some argue that only the seizure of property by the government warrants compensation while others contend that government regulation limiting the use and hence value of a piece of private property should also be compensated. The government weighs factors of public benefit against private loss todetermine whether an individual is due compensation for takings. For example,if an individual owns a building which happens to be defined as an historicbuilding, that individual would not be compensated if the government prohibited a potentially profitable venture (e.g. selling it to a chain department store); the individual could still profit from renting the building out.
Sources
www.plannersweb.com