Nollan v. California Coastal Commission
Encyclopedia
In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the United States Supreme Court reviewed a regulation under which the California Coastal Commission
required that an offer to dedicate a lateral public easement along the Nollans' beachfront lot be recorded on the chain of title to the property as a condition of approval
of a permit to demolish an existing bungalow and replace it with a three-bedroom house. The Coastal Commission had asserted that the public-easement condition was imposed to promote the legitimate state
interest of diminishing the "blockage of the view of the ocean" caused by construction of the larger house. The Court held that in evaluating such claims, it must be determined whether an "essential nexus" exists between a legitimate state interest and the permit condition.
Nollan v. California Coastal Commission is one of the few land-use-regulation cases reviewed by the United States Supreme Court. In a controversial 5-4 ruling, the Supreme Court ruled that a requirement by the CCC was a taking in violation of the Fifth
and Fourteenth Amendments
.
). 43 neighbors had granted such easements without litigation; the Nollans, however, believed that the demand was an unconstitutional taking of their property without just compensation, and filed a petition for writ of administrative mandamus
asking the Ventura County Superior Court to invalidate the easement stipulation. The CCC argued that the new house would increase blockage of the ocean view and contribute to a “wall of residential structures” which would prevent the public “psychologically from realizing a stretch of coastline exists nearby that they have every right to visit". The Nollans could offset this burden to the public, the CCC argued, by providing additional access to the beach in the form of a dedicated access easement along the beachfront side of their property. The Superior Court ruled in favor of the Nollans, declaring “the Commission could impose access conditions on development permits for replacement homes only where the proposed development would have an adverse impact on public access to the sea, and this requirement was not met" (Mandelker 124).
The property in question is located along Faria Beach in Ventura County, which, at the time was sparsely developed (in contrast to the 35 feet (10.7 m), three-story homes along the Malibu beaches where development of the "psychological impediment to public access" argument first occurred). Article X, Section 4 of the California Constitution
guaranteed access to the beaches, but a prospective beach-goer might have difficulty seeing the beach or finding public access to it. The walling-off effect, the argument went, created a psychological impediment to public access ensuring that no members of the public would be able to utilize a public resource (access to which is guaranteed by the state constitution). The development pattern, in effect, took a public resource supposedly available to anyone and turned it into the private enclave of the wealthy property owners whose houses lined the beach.
The "psychological impediments to public access" became a popular finding in staff reports analyzing projects before the California Coastal Commission, particularly when a proposed development had only a minor physical impact to access by the public but required (for legal adequacy for the staff report and California CEQA and Coastal Act) rational bases for imposition of conditions to help make a proposed development consistent with the environmental laws of the state.
The Nollans' property did not present the same conditions found along beaches in Malibu, being less than 4% developed and having smaller, less-intensive development than that along the Malibu shoreline. The condition for approval of the Nollans' coastal-development permit was that the applicants record an offer to dedicate a strip of property (generally 25 feet (7.6 m) wide and located landward of the mean high tide)—or, more generally, from the actual edge of the water on any particular day during any given tide along the beach.
.
In writing for the Court's majority, Justice Antonin Scalia derided the concept of psychological impediments to public access; he wrote that if a public agency wishes to place conditions of approval on a permit, that those conditions must bear some relation to the public-policy concerns purported to be resolved through the imposition of conditions of approval. For example, if a project eliminates 120 square feet (11.1 m²) of public parkland, an appropriate condition would be to require replacement in-kind of the 120 square feet (11.1 m²) to maintain the size of public parkland. In short, there had to be a nexus between the public-policy issue and the condition of approval which sought to address it. Justice Scalia then pointed out that under the ruling, a public-access condition did not meet that nexus test by compensating for the slight loss of public view across the Nollans' property; he then stated that if loss of public views across the Nollans' property was truly the issue, then an appropriate condition of approval would have been "construction of a public viewing platform on the roof of the Nollans' house".
The public had no right of passage with the existing bungalow in place, so it would be unaffected by the larger structure replacing it. The Court specified that a “close nexus” must be shown between the regulatory condition imposed and the development impacts of concern, and that the regulatory action must “substantially advance legitimate state interests” (AADASDF p 53). Although the case appears to deal primarily with takings, the principles are applied to the exaction and impact-fee debate as well. The Court struck down California’s policy of “anything goes” for exaction requirements, and reaffirmed the rational-nexus standard for states
across America
.
, 512 U.S. 374 (1994), the Court evaluated further the degree of the connection required. In that case, the City of Tigard, Oregon
required any business owner seeking to substantially expand onto property adjacent to a floodplain to create a public greenway
and bike path from private land in order to prevent flooding and traffic congestion. The Supreme Court ruled that the city’s requirement would be a taking if the city did not show that there was a reasonable relationship between the creation of the greenway and bike path and the impact of the development. "Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek
for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred", the Court held. “Such public access would deprive petitioner of the right to exclude others, one of the most essential sticks in the bundle of rights that are commonly characterized as property".
California Coastal Commission
The California Coastal Commission is a state agency in the U.S. state of California with quasi-judicial regulatory oversight over land use and public access in the California coastal zone....
required that an offer to dedicate a lateral public easement along the Nollans' beachfront lot be recorded on the chain of title to the property as a condition of approval
Exaction
An exaction is a concept in real property law where a condition for development is imposed on a parcel of land that requires part of the land to be dedicated to public use...
of a permit to demolish an existing bungalow and replace it with a three-bedroom house. The Coastal Commission had asserted that the public-easement condition was imposed to promote the legitimate state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
interest of diminishing the "blockage of the view of the ocean" caused by construction of the larger house. The Court held that in evaluating such claims, it must be determined whether an "essential nexus" exists between a legitimate state interest and the permit condition.
Nollan v. California Coastal Commission is one of the few land-use-regulation cases reviewed by the United States Supreme Court. In a controversial 5-4 ruling, the Supreme Court ruled that a requirement by the CCC was a taking in violation of the Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
and Fourteenth Amendments
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
Facts
The Nollans owned beachfront property in Ventura County, and wished to replace a 504 square feet (46.8 m²) bungalow which had fallen into disrepair with a 2500 square feet (232.3 m²) house. As a condition for permits to do so, the California Coastal Commission required that the Nollans dedicate for 20 years a strip of land along the beach in front of their house to allow the public the right of pass and re-pass along the beach (to be enacted only when a public agency agreed to accept management of the ambulatory lateral-access easementEasement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
). 43 neighbors had granted such easements without litigation; the Nollans, however, believed that the demand was an unconstitutional taking of their property without just compensation, and filed a petition for writ of administrative mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
asking the Ventura County Superior Court to invalidate the easement stipulation. The CCC argued that the new house would increase blockage of the ocean view and contribute to a “wall of residential structures” which would prevent the public “psychologically from realizing a stretch of coastline exists nearby that they have every right to visit". The Nollans could offset this burden to the public, the CCC argued, by providing additional access to the beach in the form of a dedicated access easement along the beachfront side of their property. The Superior Court ruled in favor of the Nollans, declaring “the Commission could impose access conditions on development permits for replacement homes only where the proposed development would have an adverse impact on public access to the sea, and this requirement was not met" (Mandelker 124).
The property in question is located along Faria Beach in Ventura County, which, at the time was sparsely developed (in contrast to the 35 feet (10.7 m), three-story homes along the Malibu beaches where development of the "psychological impediment to public access" argument first occurred). Article X, Section 4 of the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
guaranteed access to the beaches, but a prospective beach-goer might have difficulty seeing the beach or finding public access to it. The walling-off effect, the argument went, created a psychological impediment to public access ensuring that no members of the public would be able to utilize a public resource (access to which is guaranteed by the state constitution). The development pattern, in effect, took a public resource supposedly available to anyone and turned it into the private enclave of the wealthy property owners whose houses lined the beach.
The "psychological impediments to public access" became a popular finding in staff reports analyzing projects before the California Coastal Commission, particularly when a proposed development had only a minor physical impact to access by the public but required (for legal adequacy for the staff report and California CEQA and Coastal Act) rational bases for imposition of conditions to help make a proposed development consistent with the environmental laws of the state.
The Nollans' property did not present the same conditions found along beaches in Malibu, being less than 4% developed and having smaller, less-intensive development than that along the Malibu shoreline. The condition for approval of the Nollans' coastal-development permit was that the applicants record an offer to dedicate a strip of property (generally 25 feet (7.6 m) wide and located landward of the mean high tide)—or, more generally, from the actual edge of the water on any particular day during any given tide along the beach.
Prior procedure
The CCC subsequently appealed to the California Courts of Appeal; the court ruled in its favor, finding “imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional". The court also held that the Nollans' taking claim failed because the condition did not deprive them of all reasonable use of their property. The Nollans appealed to the United States Supreme Court, raising only the constitutional question.Issue
The issue before the court was whether the imposition by the CCC of the requirement that the Nollans convey a public easement as a condition for granting a land-use permit constituted a takingEminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
.
Reasoning
Justice Scalia delivered the decision of the Court: “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...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".In writing for the Court's majority, Justice Antonin Scalia derided the concept of psychological impediments to public access; he wrote that if a public agency wishes to place conditions of approval on a permit, that those conditions must bear some relation to the public-policy concerns purported to be resolved through the imposition of conditions of approval. For example, if a project eliminates 120 square feet (11.1 m²) of public parkland, an appropriate condition would be to require replacement in-kind of the 120 square feet (11.1 m²) to maintain the size of public parkland. In short, there had to be a nexus between the public-policy issue and the condition of approval which sought to address it. Justice Scalia then pointed out that under the ruling, a public-access condition did not meet that nexus test by compensating for the slight loss of public view across the Nollans' property; he then stated that if loss of public views across the Nollans' property was truly the issue, then an appropriate condition of approval would have been "construction of a public viewing platform on the roof of the Nollans' house".
The public had no right of passage with the existing bungalow in place, so it would be unaffected by the larger structure replacing it. The Court specified that a “close nexus” must be shown between the regulatory condition imposed and the development impacts of concern, and that the regulatory action must “substantially advance legitimate state interests” (AADASDF p 53). Although the case appears to deal primarily with takings, the principles are applied to the exaction and impact-fee debate as well. The Court struck down California’s policy of “anything goes” for exaction requirements, and reaffirmed the rational-nexus standard for states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
across America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
Later implications
In Dolan v. City of TigardDolan v. City of Tigard
Dolan v. City of Tigard, , more commonly Dolan v. Tigard, was a United States Supreme Court case argued before the Court in 1994. It was a landmark case regarding the practice of zoning and property rights, and served to establish limits on the ability of cities and other government agencies, to...
, 512 U.S. 374 (1994), the Court evaluated further the degree of the connection required. In that case, the City of Tigard, Oregon
Tigard, Oregon
Tigard is a city in Washington County, Oregon, United States. The population was 48,035 at the 2010 census. As of 2007, Tigard was the state's 12th largest city. Incorporated in 1961, the city is located south of Beaverton and north of Tualatin, and is part of the Portland metropolitan area...
required any business owner seeking to substantially expand onto property adjacent to a floodplain to create a public greenway
Greenway (landscape)
A greenway is a long, narrow piece of land, often used for recreation and pedestrian and bicycle user traffic, and sometimes for streetcar, light rail or retail uses.- Terminology :...
and bike path from private land in order to prevent flooding and traffic congestion. The Supreme Court ruled that the city’s requirement would be a taking if the city did not show that there was a reasonable relationship between the creation of the greenway and bike path and the impact of the development. "Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek
Fanno Creek
Fanno Creek is a tributary of the Tualatin River in the U.S. state of Oregon. Part of the drainage basin of the Columbia River, its watershed covers about in Multnomah, Washington, and Clackamas counties, including about within the Portland city limits....
for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred", the Court held. “Such public access would deprive petitioner of the right to exclude others, one of the most essential sticks in the bundle of rights that are commonly characterized as property".