Nollan v. California Coastal Commission

NOLLAN ET UX. v. CALIFORNIA COASTAL COMMISSION

Appeal from the Court of Appeal of California, Second Appellate District.

No. 86-133. Argued March 30, 1987 — Decided June 26, 1987.

177 Cal. App. 3d 719, 223 Cal. Rptr. 28, reversed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 842. BLACKMUN, J., filed a dissenting opinion, post, p. 865. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 866.

Robert K. Best argued the cause for appellants. With him on the briefs were Ronald A. Zumbrun and Timothy A. Bittle. Andrea Sheridan Ordin, Chief Assistant Attorney General of California, argued the cause for appellee. With her on the brief were John K. Van de Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, Anthony M. Summers, Supervising Deputy Attorney General, and Jamee Jordan Patterson.

The report occupies pages 825 through 867 of volume 483 of the United States Reports. The opinion of the Court begins at page 827 and ends at page 842; the dissenting opinion of Justice Brennan begins at page 842, that of Justice Blackmun at page 865, and that of Justice Stevens at page 866.

[483 U.S. 825] “The California Coastal Commission granted a permit to appellants to replace a small bungalow on their beachfront lot with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located between two public beaches. The County Superior Court granted appellants a writ of administrative mandamus and directed that the permit condition be struck. However, the State Court of Appeal reversed, ruling that imposition of the condition did not violate the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment.”

[483 U.S. 825] “Held: 1. 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. The government's power to forbid particular land uses in order to advance some legitimate police-power purpose includes the power to condition such use upon some concession by the owner, even a concession of property rights, so long as the condition furthers the same governmental purpose advanced as justification for prohibiting the use. Pp. 831-837.”

[483 U.S. 825] “2. Here the Commission's imposition of the access-easement condition cannot be treated as an exercise of land-use regulation power since the condition does not serve public purposes related to the permit requirement. Of those put forth to justify it — protecting the public's ability to see the beach, assisting the public in overcoming a perceived ‘psychological’ barrier to using the beach, and preventing beach congestion — none is plausible. Moreover, the Commission's justification for the access requirement unrelated to land-use regulation — that it is part of a comprehensive program to provide beach access arising from prior coastal permit decisions — is simply an expression of the belief that the public interest will be served by a continuous strip of publicly accessible beach. [483 U.S. 826] Although the State is free to advance its ‘comprehensive program’ by exercising its eminent domain power and paying for access easements, it cannot compel coastal residents alone to contribute to the realization of that goal. Pp. 838-842.”

[483 U.S. 831] “Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) ‘a mere restriction on its use,’ post, at 848-849, n. 3, is to use words in a manner that deprives them of all their ordinary meaning.”

[483 U.S. 831] “We have repeatedly held that, as to property reserved by its owner for private use, ‘the right to exclude [others is] “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”’ Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979).”

[483 U.S. 832] “We think a ‘permanent physical occupation’ has occurred, for purposes of that rule, where 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.”

[483 U.S. 836] “The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house — for example, a height limitation, a width restriction, or a ban on fences — so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional.”

[483 U.S. 836] “If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the [483 U.S. 837] owner an alternative to that prohibition which accomplishes the same purpose is not.”

[483 U.S. 837] “The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury.”

[483 U.S. 837] “Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of ‘legitimate state interests’ in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.’ J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981).”

[483 U.S. 841] “We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a ‘substantial advanc[ing]’ of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective.”

[483 U.S. 841] “That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its ‘comprehensive program,’ if it wishes, by using its power of eminent domain for this ‘public pur- [483 U.S. 842] pose,’ see U. S. Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it.”

[483 U.S. 842] “Reversed.”

[483 U.S. 842] “Appellants in this case sought to construct a new dwelling on their beach lot that would both diminish visual access to the beach and move private development closer to the public tidelands. The Commission reasonably concluded that such ‘buildout,’ both individually and cumulatively, threatens public access to the shore. It sought to offset this encroachment by obtaining assurance that the public may walk along the shoreline in order to gain access to the ocean. The Court finds this an illegitimate exercise of the police power, because it maintains that there is no reasonable relationship between the effect of the development and the condition imposed.”

[483 U.S. 842] “The first problem with this conclusion is that the Court imposes a standard of precision for the exercise of a State's police power that has been discredited for the better part of this century. . . . The Court has, in short, given appellants a windfall at the expense of the public.”

Editorial note. Justice Blackmun, dissenting separately, objected that the Court had substituted its own judgment for the Commission's factual finding of a connection between the new construction and the burden on shoreline access, and that the majority's insistence on precision in that connection had no warrant in the Court's earlier land-use decisions.

Editorial note. Justice Stevens, joined by Justice Blackmun, wrote that the uncertainty produced by the Court's remedial and substantive takings decisions placed regulators in an untenable position, and that the Court's newly exacting review of permit conditions would deter legitimate planning without any corresponding gain in the protection of property.

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus and the Court's own text in extended verbatim passages arranged in the Court's own sequence of analysis, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose describing the record; every quotation mark encloses the Court's or the Reporter's words.

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Editorial note. Three limitations are declared. First, the numbered footnotes of all opinions are not reproduced. Second, the dissenting opinion of Justice Brennan is represented by its opening passage only, and the separate dissents of Justices Blackmun and Stevens are summarised rather than quoted. Third, obvious typographic and scanning defects in the digitised bound volume have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation.

Editorial note. For any purpose requiring the complete official text, consult the bound volume through the canonical source recorded with this authority.

Editorial note. James and Marilyn Nollan held a beachfront lot in Ventura County between two public beaches, a quarter-mile from Faria County Park and 1,800 feet from a cove used for public bathing. A concrete seawall about eight feet high separated the beach portion of the lot from the remainder. Their option to purchase required them to demolish the 504-square-foot bungalow on the lot and replace it, which required a coastal development permit. The Commission granted the permit on the condition that they record a deed restriction granting the public an easement to pass across the strip between the mean high tide line and the seawall, finding that the larger house would obstruct the view, contribute to a “wall” of residential structures, and cumulatively burden the public's ability to traverse the shorefront. The Commission had imposed the same condition on 43 of 60 permits along the same tract.

Editorial note. The Ventura County Superior Court twice ruled for the Nollans, ultimately on statutory grounds, and directed that the condition be struck. The California Court of Appeal reversed, 177 Cal. App. 3d 719, 223 Cal. Rptr. 28 (1986), holding that the Coastal Act required an access condition where the replacement house exceeded the original in floor area, height, or bulk by more than ten per cent, and that the requirement was constitutional. The Supreme Court noted probable jurisdiction, 479 U. S. 913 (1986), and reversed.

Editorial note. The issue was whether a permit condition requiring the conveyance of a public easement is a taking. The Court held that it is, unless the condition serves the same governmental purpose that would justify a refusal of the permit. Because none of the purposes advanced for the lateral access easement bore any relation to the visual and psychological obstruction attributed to the house, the condition was not a valid regulation of land use and the easement could be acquired only by eminent domain and payment.

Editorial note. Justice Scalia reasoned from Loretto that a permanent and continuous right of passage is a physical occupation, and therefore that the outright imposition of the easement would have been a taking. He then accepted the Commission's premise that a power to prohibit includes a power to condition, but only where the condition advances the very end that justified the prohibition. Where that nexus fails, the condition ceases to be regulation and becomes the uncompensated acquisition of property under cover of the permit process.

Editorial note. The Court examined and rejected each asserted purpose: a lateral easement below the seawall does nothing to restore the view lost to the house, nothing to remove a psychological barrier experienced by persons who cannot see the beach, and nothing to relieve congestion caused by the occupants of a single dwelling. The Commission's remaining justification, a comprehensive coastal access programme, was a public purpose to be financed publicly rather than exacted from coastal owners.

Editorial note. Nollan supplies the treatise's rule of connection for exactions: the government may bargain in the permit process only within the scope of what it could have forbidden. It also confirms that an easement of passage is an interest in land whose appropriation is measured by the physical-occupation rule rather than by the balancing of Penn Central.

Editorial note. Followed and extended. Dolan v. City of Tigard, 512 U.S. 374 (1994), added the requirement of rough proportionality between the exaction and the projected impact. Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), applied both requirements to monetary exactions and to permit denials, and Sheetz v. County of El Dorado, 601 U.S. 267 (2024), held legislative exactions subject to the same conditions.

Editorial note. Read with U.S. Const. amend. V (Takings Clause) and the treatise chapters on land-use regulation, on easements, and on the constitutional limits of the police power.