Nollan v. California Coastal Commission

The Court voted, 5-4, to reverse. Justice Scalia, delivering the opinion for the majority, began by pointing out that

Although the outright taking of an uncompensated, permanent, public-access easement would violate the Takings Clause, conditioning appellants' rebuilding permit on their granting such 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 public could 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 state to 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 a public easement does not constitute the taking of a property interest but rather (as Justice Brennan contends) `a mere restriction on its use,' is to use words in a manner that deprives them of their ordinary meaning." The Court had held in Loretto v. Teleprompter Manhattan CATV Corp. (1982) quoting Kaiser 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 creating a situation in which "individuals are given a permanent and continuous right to 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 it was." If the commission had truly been interested in whether people could see the beach from the road, Scalia suggested, it might have issued limitations on 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."