Great Eight, No. 5 – Nollan v. California Coastal Commission (US)

by: Joseph Grather
15 Feb 2023

1987. My penultimate year in high school and the year the United States Supreme Court decided Nollan v. California Coastal Commission.  483 U.S. 825.

Justice Scalia’s opinion is worthy of a full read, especially the continued – and almost comical – retorts to Justice Brennan’s dissenting opinion.

The issue is on appeal is immediately established:  “James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property.”

The Supreme Court reversed, reasoning that the imposition of a public access easement was akin to “a “permanent physical occupation” because the public would be 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.”

The Court then addressed the more difficult “question whether requiring [the easement] to be conveyed as a condition for issuing a land‑use permit alters the outcome.”

“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.”

The Coastal Commission argued it furthered the legitimate State interest of “protecting the public’s ability to see the beach, assisting the public in overcoming the “psychological barrier” to using the beach created by a developed shorefront, and preventing congestion on the public beaches.”

The Court soundly rejected their argument.  “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.”

Scalia rewrote “the argument to eliminate the play on words makes clear that there is nothing to it.   It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.  It is also impossible to understand how it lowers any “psychological barrier” to using the public beaches, or how it helps to remedy any additional congestion on them caused by construction of the Nollans’ new house.  We therefore find that the Commission’s imposition of the permit condition cannot be treated as an exercise of its land‑use power for any of these purposes.  Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts.”

“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 abridgement 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.”