1. Nollan v California Coastal Commission There’s no nexus like an essential nexus!

2. (c)2 What’s going on here?

3. (c)3 Under what conditions can a “developer” be required to dedicate a property interest to the public as a condition of development approval?Under what conditions can a “developer” be required to dedicate a property interest to the public as a condition of development approval? What are the limits to what can be required of a developer?What are the limits to what can be required of a developer? Can conditions be imposed in return for the “privilege” of development approval?Can conditions be imposed in return for the “privilege” of development approval?

4. (c)4 The Setting James Patrick and Marylyn Nollan bought a beachfront “bungalow” in Ventura, California.James Patrick and Marylyn Nollan bought a beachfront “bungalow” in Ventura, California. The “bungalow” was old and small – 504 FT 2 – so they wanted to “add on.”The “bungalow” was old and small – 504 FT 2 – so they wanted to “add on.” Because the “bungalow” was in the Coastal Zone, a permit from the California Coastal Commission was required.Because the “bungalow” was in the Coastal Zone, a permit from the California Coastal Commission was required. The Nollans applied for their permit and that’s when the trouble began.The Nollans applied for their permit and that’s when the trouble began.

5. (c)5 Ventura  Petaluma

6. (c)6 Ventura, California

7. (c)7

8. 8

9. 9 Property Owners Want The Public Wants Ocean Front Properties

10. (c)10 The Public Would Also Like This And.....

11. (c)11 What about this?

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

13. (c)13 What’s It All About?Trespass Property Line

14. (c)14 The Subdivision -- Platted in the early 1920’sPlatted in the early 1920’s Platted to Mean High Tide (public ownership then)Platted to Mean High Tide (public ownership then) Did not reserve public easement for accessDid not reserve public easement for access The Pacific is cold, so if someone is walking along the beach and wants to stay dry...The Pacific is cold, so if someone is walking along the beach and wants to stay dry... They trespass!They trespass! Remember this from the Isle of Palms?

15. (c)15 So... Property Owners Erect These....

16. (c)16 And Call......

17. (c)17 The subdivision should not have been platted that way.The subdivision should not have been platted that way. Property line should have been 50 feet – or more – landward of mean high waterProperty line should have been 50 feet – or more – landward of mean high water Public perceived a right to walk along the beach,Public perceived a right to walk along the beach, Property owners perceived a right to exclude the public, andProperty owners perceived a right to exclude the public, and Everyone perceived a problemEveryone perceived a problem So...So...

18. (c)18 California Coastal Commission began requiring the dedication of a public access easements on the seaward side of such properties as a condition for development approvals.California Coastal Commission began requiring the dedication of a public access easements on the seaward side of such properties as a condition for development approvals. This practice was to correct what was seen an errant subdivision approval.This practice was to correct what was seen an errant subdivision approval.

19. (c)19 Imagine the seawall

20. (c)20 Time Line 1981, Nollans acquire property with a 504 FT “bungalow”1981, Nollans acquire property with a 504 FT “bungalow” 1982, Nollans apply to CCC for permit to demolish the existing building and construct larger house – 1,674 FT2, an increase of 200%.1982, Nollans apply to CCC for permit to demolish the existing building and construct larger house – 1,674 FT2, an increase of 200%. CCC staff recommended granting subject to easement allowing public to pass between mean high tide and seawall.CCC staff recommended granting subject to easement allowing public to pass between mean high tide and seawall. June 1982, Nollans ask the court to set aside requirement because was no evidence that their development would adversely impact public access.June 1982, Nollans ask the court to set aside requirement because was no evidence that their development would adversely impact public access.

21. (c)21 Court agreed and remanded case to CCC for hearingCourt agreed and remanded case to CCC for hearing CCC found that:CCC found that: –A new and larger house would increase blockage of ocean view –Would contribute to a “wall” along the beach –Would “psychologically” prevent the public from “realizing a stretch of coastline exists nearby that they have a right to visit.”

22. (c)22 – Increase private use of the beach –Burden the public’s ability to traverse to and along the shoreline (between public parks). –Therefore, CCC required a lateral easement along the seaward side of the property. –CCC has applied same requirement to 43 out of 60 applications (all that could have been required).

23. (c)23 Faria Park Nollan Property State Park

24. (c)24 The Problem Blocking Ocean View

25. (c)25 The Solution

26. (c)26 PUBLICSTREETPUBLICSTREET EASEMENTEASEMENT New House PACIFICOCEANPACIFICOCEAN Neighbor Lot Mean High Tide

27. (c)27 California trial court found insufficient evidence to 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 the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional”

28. (c)28

29. (c)29 Supreme Court Opinion There is no nexus like an essential nexus!There is no nexus like an essential nexus!

30. (c)30 “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,“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,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.”we have no doubt there would have been a taking.” “[T]he right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.” [ Loretto and Kaiser Aetna]“[T]he right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.” [ Loretto and Kaiser Aetna]

31. (c)31 “We have long recognized that land ‑ use regulation does not effect a taking if it“We have long recognized that land ‑ use regulation does not effect a taking if it – ‘substantially advance[s] legitimate state interests’ and –does not ‘den[y] an owner economically viable use of his land," Agins v. Tiburon

32. (c)32 “The Commission argues that among these permissible [public] purposes are –“The Commission argues that among these 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 barrier’ to using the beach created by a developed shorefront, andassisting the public in overcoming the ‘psychological barrier’ to using the beach created by a developed shorefront, and preventing congestion on the public beaches.”preventing congestion on the public beaches.” “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.“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.” We agree.”

33. (c)33 “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 restriction, or a ban on fences restriction, or a ban on fences ‑‑ 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 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 condition would also be constitutional.” condition would also be constitutional.” on their property

34. (c)34 Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit,Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner,the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. even a concession of property rights, that serves the same end.

35. (c)35 “If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking“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 owner an alternative to that prohibition which accomplishes the same purpose is not.”it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not.”

36. (c)36 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.“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.”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.”

37. (c)37 “[T]he lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was.“[T]he 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.The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation.

38. (c)38 The Commission may well be right that [a continuous strip of publicly accessible beach along the coast] it is a good idea, “ The Commission may well be right that [a continuous strip of publicly accessible beach along the coast] 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.”

39. (c)39 Brennan’s dissent: His first point –His first point – –There is a “reasonable relationship” between Nollan’s new house and the granting of an access easement. “In reviewing a Takings Clause claim, we have regarded as particularly significant“In reviewing a Takings Clause claim, we have regarded as particularly significant –the nature of the governmental action and –the economic impact of regulation, –especially the extent to which regulation interferes with investment ‑ backed expectations.”

40. (c)40 “The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast.”“The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast.” “The physical intrusion permitted by the deed restriction is minimal.“The physical intrusion permitted by the deed restriction is minimal. The public is permitted the right to pass and repass along the coast in an area from the seawall to the mean high ‑ tide mark.”The public is permitted the right to pass and repass along the coast in an area from the seawall to the mean high ‑ tide mark.”

41. (c)41 “Appellants can make no tenable claim that either –“Appellants can make no tenable claim that either – –their enjoyment of their property or –its value –is diminished by the public's ability merely to pass and re-pass a few feet closer to the seawall beyond which appellants' house is located.”

42. (c)42 So..... Says Brennen If there is an advancement of a public purpose,If there is an advancement of a public purpose, If there is no interference with investment backed expectations, andIf there is no interference with investment backed expectations, and If there is no impact on the use or value of the property,If there is no impact on the use or value of the property, the regulation should stand.the regulation should stand.

43. (c)43 The Scalia (majority) position is that if the essential nexus is lacking, the lack of a negative impact on the property owner is irrelevant.The Scalia (majority) position is that if the essential nexus is lacking, the lack of a negative impact on the property owner is irrelevant. What does this do to “reasonable relationship?”What does this do to “reasonable relationship?” What does this do to the “privilege theory?”

44. (c)44 So, a “nexus” is “essential”

45. (c)45 The rest of the story...

46. (c)46 EASEMENtEASEMENt PUBLICSTREETPUBLICSTREET New House PACIFICOCEANPACIFICOCEAN Neighbor Lot