User:Dagny08/Draft of Nollan v CCC

Nollan v. California Coastal Commission,, is a United States Supreme Court case which was argued before the Court in 1987. It is a landmark case regarding the circumstances under which a government agency may condition a permit on the dedication of an easement, as well as the scope of an individual's property rights. The case established limits on the ability government agencies to use land use regulations to compel property owners to dedicate unrelated public access easements in exchange for a building permit.

Facts
Petitioners James and Marilyn Nollan owned a beachfront lot in Ventura County, California. A public beach area lay south of their lot. The Nollans originally leased their property with an option to buy, conditioned on their promise to demolish and replace a small bungalow located on the property. In order to replace the bungalow, they needed a coastal development permit from the California Coastal Commission. The Nollans submitted a permit application to the Commission, proposing to demolish the bungalow and replace it with a three-bedroom house. The Commission granted the permit, on the condition that the Nollans record a deed restriction granting an easement allowing the public to pass across a portion of their property in order to access the Cove.

Trial court proceedings and decision
The Nollans, represented by the Pacific Legal Foundation, filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition, arguing that the condition could not be imposed absent any evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case back to the Commission for a full evidentiary hearing on this issue.

The Commission held a public hearing and made additional factual findings, including the finding that the new house would block the view of the ocean and contribute to the development of a wall of houses, psychologically preventing the public from attempting to access the beach. The Commission reaffirmed the imposition of the condition on the Nollans' permit.

The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, arguing that the imposition of the easement condition violated the Fifth Amendment's Takings Clause, incorporated against the States by the Fourteenth Amendment. The Superior Court, ruling on statutory grounds to avoid any issues of constitutionality, granted the writ of mandamus and directed the permit condition be struck. The Commission appealed. While the appeal was pending, the Nollans satisfied the condition on their option to purchase by tearing down the bungalow and building the house, and bought the property, all without notifying the Commission.

Court of Appeal decision
The Court of Appeal reversed the Superior Court, finding that the Commission could condition the permit on the easement dedication under the California Coastal Act. The Court of Appeal interpreted the Coastal Act as requiring that a coastal permit for the construction of a new house be conditioned on a grant of access, if either the floor area, height or bulk of the new house was more than 10% larger than that of the building being replaced.

The Court of Appeal also ruled that the requirement did not violate the Constitution, relying on the reasoning of Grupe v. California Coastal Commission, a previous California Court of Appeal decision. In Grupe, the court ruled that if a project contributed to the need for public access, even if the project alone had not created the need for access, and even if only an indirect relationship existed between the access exacted and the need to which the project contribued, an access condition could be imposed on a development permit without violating the Constitution because the condition was sufficiently related to the burdens created by the project. The Court of Appeal ruled that the evidence showed that the situation in Grupe was the same situation with respect to the Nollans' house.

The Court of Appeal further ruled that the Nollans' taking claim failed because even though the condition diminished the value of the Nollans' property, it did not deprive them of all reasonable use of their property. The Court of Appeal concluded that the Superior Court erred in granting the writ of mandamus. The Nollans appealed to the Supreme Court of the United States, raising only the constitutional question.

Majority opinion
Justice Scalia wrote the opinion for the majority of the Supreme Court.

Scalia opened by stating that there clearly would have been a taking of property by the government if California had outright required the Nollans to make an easement across their public permantly available to the public in order to increase public access to the beach, instead of conditioning their permit on their agreement to do so. Scalia denied that an appropriation of a public easement across a private property owner's land was only a restriction on use. Instead, the government, using its power of eminent domain, could require the property owner to hand over an easement, but the government had to pay for the easement.

Scalia said that the Supreme Court has repeatly ruled that the right to exclude others is a right inherent to private property ownership. Citing Loretto v. Teleprompter Manhattan CATV Corp.,, Scalia continued his analysis with the proposition that whenever a governmental action results in the permanent physical occupation of the property, either by the government or by a third party, that action is a taking of private property no matter how small the invasion or how great the benefit to the public. The easement, which was to give third party individuals a permanent and continuous right to cross the Nollans' property, was such a permanent physical occupation, concluded Scalia. Scalia rejected Justice Brennan's dissenting argument that the California Constitution prohibited a landowner from preventing others from using his property to access navigable waters, writing that even if that were true California would still have to use eminent domain to obtain the easement, whether the California constitution did demand such easements was an issue that should first be addressed by California courts, and in any event the Supreme Court could not properly address this argument as it had not been raised by either side in previous stages of the case.

Having concluded that California could not simply demand the Nollans to convey the easement for free without violating the Constitution, Scalia stated that the question before the Supreme Court was the state could require the easement to be conveyed as a condition for issuing a land use permit to the Nollans. Scalia referenced Agins v. Tiburon,, for the rule that a land use regulation is constitutional if it substantially advances a legitimate state interest and does not deny the landowner economically viable use of his land. Scalia also acknowledged that a broad range of governmental purposes and regulations satisfied those two requirements. The Commission argued that one of the permissible governmental purposes was to protect the public from being psychologically deterred from accessing a beach they could not see due to construction. Scalia assumed that if that were the case, the Commission could deny the permit altogether if the Nollans' house would indeed harm the public in that way, unless that denial resulted in a taking under the ad-hoc Penn Central test.

The majority of the Supreme Court agreed with the Commission that a permit condition that served the same legitimate police-power purpose as a refusal to issue the permit is not a taking if the refusal to issue the permit would not be a taking. Scalia wrote that if the Commission could constitutionally forbid the construction of the house altogether in order to preserve the public's ability to see the beach, the Commission could also constitutionally grant permit to build the house with conditions, like height or width restrictions, that would also preserve the public's ability to see the beach.

But, as Scalia wrote, a permit condition is unconstitutional if the permit condition would not further the same purpose as would be served by prohibiting the construction altogether. Scalia termed this the "essential nexus." If there was no essential nexus between the purpose the government was trying to advance and the permit condition, the permit condition was not constitutional. The example Scalia gave was a law that banned yelling fire in a crowded theater, but which also granted permits to do so for a $100 fee. Scalia reasoned that the ban on shouting fire would be a proper exercise of the State's police power, allowing the exception for those willing to pay defeated the purpose of the ordinance, namely to protect the public from the danger from someone unnecessarily shouting fire in a crowded theater.

Brennan's dissent
Justice Brennan's dissent was joined by Justice Marshall.

Blackmun's dissent
Justice Blackmun's dissenting opinion began with the statement that he did not believe the majority opinion implicated the public-trust doctrine, as he did not think that issue was before the Court.

His dissent then went on to disagree with the Court's requirement that there be a close nexus between the benefits and burdens of a permit condition, stating that the constitutional rule was that a State only needs a rational basis for exercising its police power. As Justice Blackmun believed that there was a rational basis, i.e. facilitating public access to the beach, he would have found that the permit condition was a valid exercise of the State's police power, and there was no taking of the Nollan's property.

Stevens' dissent
Justice Stevens' dissent was joined by Justice Blackmun. Justice Stevens wrote that the disagreement between the majority opinion and Justice Brennan's dissent highlighted an important point concerning government regulation of the use of private property: public officials could, in good faith, disagree about the validity of specific types of land-use regulation. He then faulted the Supreme Court's decision in First English Evangelical Lutheran Church of Glendale v. Los Angeles County,. First English adopted a rule first proposed in Justice Brennan's dissent in San Diego Gas & Electric Co. v. San Diego,, namely that government officials who mistakenly regulate private property in a way that results in a taking of that property will be liable for the taking, even if the officials had acted in good-faith. This, Justice Stevens wrote, unnecessarily discouraged government officials from acting to protect the environment and the public.

Stevens wrote that the First English rule, imposing liability for good-faith government land-use regulation, contrasted with Brennan's current dissent in Nollan, as Brennan had written that the public interest was served if state agencies had more flexibility in regulating private property use. Stevens concluded that he hoped that First English's rule of liability would be overturned by a future court.