Nollan v California Nollan v California Coastal CommissionCoastal Commission

There’s no nexus like an There’s no nexus like an essential nexus!essential nexus!

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What’s going on

here?

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• Under what conditions can a “developer” be Under what conditions can a “developer” be required to dedicate a property interest to the required to dedicate a property interest to the public as a condition of development approval?public as a condition of development approval?

• What are the limits to what can be required of a What are the limits to what can be required of a developer?developer?

• Can conditions be imposed in return for the Can conditions be imposed in return for the “privilege” of development approval? “privilege” of development approval?

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The Setting• James Patrick and Marylyn Nollan bought James Patrick and Marylyn Nollan bought

a beachfront “bungalow” in Ventura, a beachfront “bungalow” in Ventura, California.California.

• The “bungalow” was old and small – 504 The “bungalow” was old and small – 504 FTFT2 2 – so they wanted to “add on.”– so they wanted to “add on.”

• Because the “bungalow” was in the Because the “bungalow” was in the Coastal Zone, a permit from the California Coastal Zone, a permit from the California Coastal Commission was required.Coastal Commission was required.

• The Nollans applied for their permit and The Nollans applied for their permit and that’s when the trouble began.that’s when the trouble began.

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Ventura

Petaluma

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Ventura, California

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Property Owners WantProperty Owners Want

The Public WantsThe Public Wants

Ocean Front Properties

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The Public Would Also LikeThe Public Would Also Like

This

And . . . . .

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What about this?What about this?

(c) 12[Actually this is not Ventura]Actually this is not Ventura]

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What’s It All About?

TrespassTrespass

Property LineProperty Line

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The Subdivision --• Platted in the early 1920’sPlatted in the early 1920’s

• Platted to Mean High Tide (public ownership Platted to Mean High Tide (public ownership then) then)

• Did not reserve public easement for accessDid not reserve public easement for access

• The Pacific is cold, so if someone is walking The Pacific is cold, so if someone is walking along the beach and wants to stay dry . . .along the beach and wants to stay dry . . .

• They trespass! They trespass!

Remember this from Remember this from the Isle of Palms?the Isle of Palms?

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So . . .

Property OwnersProperty OwnersErect These . . . .Erect These . . . .

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And Call . . . . . .

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• The subdivision should not have been The subdivision should not have been platted that way. platted that way.

• Property line should have been 50 feet – Property line should have been 50 feet – or more – landward of mean high wateror more – landward of mean high water

• Public perceived a right to walk along the Public perceived a right to walk along the beach,beach,

• Property owners perceived a right to Property owners perceived a right to exclude the public, andexclude the public, and

• Everyone perceived a problem Everyone perceived a problem

• So . . .So . . .

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• California Coastal Commission began California Coastal Commission began requiring the dedication of a public requiring the dedication of a public access easements on the seaward side access easements on the seaward side of such properties as a condition for of such properties as a condition for development approvals. development approvals.

• This practice was to correct what was This practice was to correct what was seen an errant subdivision approval.seen an errant subdivision approval.

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Imagine the seawall

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Time Line• 1981, Nollans acquire property with a 504 FT 1981, Nollans acquire property with a 504 FT

“bungalow” “bungalow” • 1982, Nollans apply to CCC for permit to 1982, Nollans apply to CCC for permit to

demolish the existing building and construct demolish the existing building and construct larger house – 1,674 FT2, an increase of 200%. larger house – 1,674 FT2, an increase of 200%.

• CCC staff recommended granting subject to CCC staff recommended granting subject to easement allowing public to pass between easement allowing public to pass between mean high tide and seawall. mean high tide and seawall.

• June 1982, Nollans ask the court to set aside June 1982, Nollans ask the court to set aside requirement because was no evidence that their requirement because was no evidence that their development would adversely impact public development would adversely impact public access.access.

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• Court agreed and remanded case to Court agreed and remanded case to CCC for hearingCCC for hearing

• CCC found that:CCC found that:– A new and larger house would increase A new and larger house would increase

blockage of ocean viewblockage of ocean view– Would contribute to a “wall” along the Would contribute to a “wall” along the

beachbeach– Would “psychologically” prevent the public Would “psychologically” prevent the public

from “realizing a stretch of coastline exists from “realizing a stretch of coastline exists nearby that they have a right to visit.”nearby that they have a right to visit.”

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– Increase private use of the beachIncrease private use of the beach– Burden the public’s ability to traverse to Burden the public’s ability to traverse to

and along the shoreline (between public and along the shoreline (between public parks).parks).

– Therefore, CCC required a lateral Therefore, CCC required a lateral easement along the seaward side of the easement along the seaward side of the property. property.

– CCC has applied same requirement to 43 CCC has applied same requirement to 43 out of 60 applications (all that could have out of 60 applications (all that could have been required).been required).

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Faria Park

Nollan Property

State Park

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The ProblemThe Problem

Blocking Ocean ViewBlocking Ocean View

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The SolutionThe Solution

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PUBLIC

STREET

EASEMENT

New House

PACIFIC

OCEAN

Neighbor LotNeighbor Lot

Neighbor LotNeighbor Lot

MeanHighTide

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• California trial court found insufficient evidence to California trial court found insufficient evidence to support the requirement to dedicate the easement.support the requirement to dedicate the easement.• California Court of Appeals reversed,California Court of Appeals reversed, “ “[S]o long as a project contributed to the need for [S]o long as a project contributed to the need for public assess, public assess,

even if the project standing alone had not created even if the project standing alone had not created the need for access, the need for access, and even if there was only an indirect relationship and even if there was only an indirect relationship between the access exacted and the need to between the access exacted and the need to which the project contributed, which the project contributed, imposition of an access condition on a imposition of an access condition on a development permit was sufficiently related to development permit was sufficiently related to burdens created by the project to be burdens created by the project to be constitutionalconstitutional” ”

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Supreme Court OpinionSupreme Court Opinion• There is no nexus like an There is no nexus like an

essential nexus!essential nexus!

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• ““Had California simply required the Nollans to Had California simply required the Nollans to make an easement across their beachfront make an easement across their beachfront available to the public on a permanent basis in available to the public on a permanent basis in order to increase public access to the beach,order to increase public access to the beach,

• rather than conditioning their permit to rebuild rather than conditioning their permit to rebuild their house on their agreeing to do so, their house on their agreeing to do so,

• we have no doubt there would have been a we have no doubt there would have been a taking.” taking.”

• ““[T]he right to exclude [others is] ‘one of the [T]he right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that most essential sticks in the bundle of rights that are commonly characterized as property.” are commonly characterized as property.” [ [ LorettoLoretto and and Kaiser AetnaKaiser Aetna]]

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• ““We have long recognized that land‑use We have long recognized that land‑use regulation does not effect a taking if itregulation does not effect a taking if it

– ‘ ‘substantially advance[s] legitimate state substantially advance[s] legitimate state interests’ and interests’ and

– does not ‘den[y] an owner economically viable does not ‘den[y] an owner economically viable use of his land," use of his land," Agins v. TiburonAgins v. Tiburon

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• ““The Commission argues that among these The Commission argues that among these permissible [public] purposes are –permissible [public] purposes are –

• protecting the public's ability to see the beach,protecting the public's ability to see the beach, • assisting the public in overcoming the ‘psychological assisting the public in overcoming the ‘psychological

barrier’ to using the beach created by a developed barrier’ to using the beach created by a developed shorefront, and shorefront, and

• preventing congestion on the public beaches.preventing congestion on the public beaches.””

• ““The Commission argues that a permit condition The Commission argues that a permit condition that serves the same legitimate police‑power that serves the same legitimate police‑power purpose as a refusal to issue the permit should purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue not be found to be a taking if the refusal to issue the permit would not constitute a taking.the permit would not constitute a taking.

• We agree.”We agree.”

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““Thus, if the Commission attached to the permit some Thus, if the Commission attached to the permit some condition that would have protected the public's ability condition that would have protected the public's ability to see the beach notwithstanding construction of the to see the beach notwithstanding construction of the new house ‑‑new house ‑‑ ‑‑ ‑‑ for example, a height limitation, a width for example, a height limitation, a width restriction, or a ban on fences restriction, or a ban on fences ‑‑ ‑‑ so long as the Comm-so long as the Comm- ission could have exercised its police power to forbid ission could have exercised its police power to forbid construction of the house altogether, construction of the house altogether,

““[T]he condition would be constitutional even if it [T]he condition would be constitutional even if it consisted of the requirement that the Nollans provide a consisted of the requirement that the Nollans provide a viewing spot on their property for passersbys with whose viewing spot on their property for passersbys with whose sighting of the ocean their new house would interfere.”sighting of the ocean their new house would interfere.”

imposition of the imposition of the condition would also be constitutional.” condition would also be constitutional.”

on their propertyon their property

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• Although such a requirement, constituting a Although such a requirement, constituting a permanent grant of continuous access to the permanent grant of continuous access to the property, would have to be considered a property, would have to be considered a taking if it were not attached to a taking if it were not attached to a development permit, development permit,

• the Commission's assumed power to forbid the Commission's assumed power to forbid construction of the house in order to protect construction of the house in order to protect the public's view of the beach must surely the public's view of the beach must surely include the power to condition construction include the power to condition construction upon some concession by the owner, upon some concession by the owner,

even a concession of property rights, that even a concession of property rights, that serves the same end. serves the same end.

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• ““If a prohibition designed to accomplish If a prohibition designed to accomplish that purpose would be a legitimate that purpose would be a legitimate exercise of the police power rather than exercise of the police power rather than a takinga taking,

• it would be strange to conclude that it would be strange to conclude that providing the owner an alternative to providing the owner an alternative to that prohibition which accomplishes the that prohibition which accomplishes the same purpose is not.”same purpose is not.”

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• “The evident constitutional propriety The evident constitutional propriety disappears, however, disappears, however, if the condition if the condition substituted for the prohibition utterly substituted for the prohibition utterly fails to further the end advancedfails to further the end advanced as the as the justification for the prohibition. justification for the prohibition.

• When that When that essential nexusessential nexus is is eliminated, the situation becomes the eliminated, the situation becomes the same as if California law forbade same as if California law forbade shouting fire in a crowded theater, but shouting fire in a crowded theater, but granted dispensations to those willing to granted dispensations to those willing to contribute $100 to the state treasury.”contribute $100 to the state treasury.”

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• ““[T]he [T]he lack of nexuslack of nexus between the between the condition and the original purpose of the condition and the original purpose of the building restriction converts that building restriction converts that purpose to something other than what it purpose to something other than what it was.was.

• The purpose then becomes, quite The purpose then becomes, quite simply, the obtaining of an easement to simply, the obtaining of an easement to serve some valid governmental serve some valid governmental purpose, but without payment of purpose, but without payment of compensation.compensation.

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• “The Commission may well be right that [a The Commission may well be right that [a continuous strip of publicly accessible beach continuous strip of publicly accessible beach along the coast] it is a good idea, along the coast] it is a good idea, but that does but that does not establish that the Nollans (and other coastal not establish that the Nollans (and other coastal residents) alone can be compelled to contribute residents) alone can be compelled to contribute to its realizationto its realization.”.”

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Brennan’s dissent:Brennan’s dissent:• His first point –His first point –

– There is a “reasonable relationship” between There is a “reasonable relationship” between Nollan’s new house and the granting of an access Nollan’s new house and the granting of an access easement.easement.

• ““In reviewing a Takings Clause claim, we In reviewing a Takings Clause claim, we have regarded as particularly significant have regarded as particularly significant – the nature of the governmental action and the nature of the governmental action and – the economic impact of regulation, the economic impact of regulation, – especially the extent to which regulation interferes especially the extent to which regulation interferes

with investment‑backed expectations.”with investment‑backed expectations.”

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• ““The character of the government action in The character of the government action in this case is the imposition of a condition on this case is the imposition of a condition on permit approval, which allows the public to permit approval, which allows the public to continue to have access to the coast.”continue to have access to the coast.”

• ““The physical intrusion permitted by the The physical intrusion permitted by the deed restriction is minimal.deed restriction is minimal.

• The public is permitted the right to pass The public is permitted the right to pass and repass along the coast in an area from and repass along the coast in an area from the seawall to the mean high‑tide mark.”the seawall to the mean high‑tide mark.”

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• ““Appellants can make no tenable claim Appellants can make no tenable claim that either – that either –

– their enjoyment of their property or their enjoyment of their property or

– its value its value

– is diminished by the public's ability is diminished by the public's ability merely to pass and re-pass a few feet merely to pass and re-pass a few feet closer to the seawall beyond which closer to the seawall beyond which appellants' house is located.”appellants' house is located.”

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So . . . . . Says BrennenSo . . . . . Says Brennen

• If there is an advancement of a public If there is an advancement of a public purpose, purpose,

• If there is no interference with If there is no interference with investment backed expectations, andinvestment backed expectations, and

• If there is no impact on the use or value If there is no impact on the use or value of the property, of the property,

• the regulation should stand.the regulation should stand.

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• The Scalia (majority) position is that if the The Scalia (majority) position is that if the essential nexus is lacking, the lack of a essential nexus is lacking, the lack of a negative impact on the property owner is negative impact on the property owner is irrelevant.irrelevant.

• What does this do to “reasonable What does this do to “reasonable relationship?”relationship?”

What does this do to the “privilege theory?”What does this do to the “privilege theory?”

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So, a “nexus” is “essential”So, a “nexus” is “essential”

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The rest of the story . . .The rest of the story . . .

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EASEMENt

PUBLIC

STREET

New House

PACIFIC

OCEAN

Neighbor Lot

Neighbor Lot