On the beach: Part 2, the Supreme Court
[Continued from yesterday’s Part 1.]
If the beach is public, who owns access to it? And can an intervening landowner prevent access across his or her land?
At issue is a fundamental public-policy question of land use: if there is public property (like a beach) that can be accessed only through private property, is there a public right of easement?
Just about the time I was being picketed by the MTO, the Supreme Court tackled this very issue in a critical 1987 case, Nollan versus Coastal Commission:
Mr. and Mrs. Nollan purchased beachfront property along the coast in
Mr. Nollan’s bungalow, the object of dispute
The Nollans wished to demolish the bungalow and build a modest three-bedroom home. To build the home, however, the Nollans needed to obtain a coastal development permit from the California Coastal Commission.
These facts are not identical to the Stimsons’, but similar. The state of California, standing in pro bono publico, believed that to prevent a Stimson-like lockout of the beach, it could legitimately condition its approval of something the Nollans wanted by requiring the Nollans to give their approval of something the state (and the neighbors) wanted:
The Commission granted the permit, but under the condition the Nollans would have to grant to the public an easement allowing the public to traverse one-third of their property.
The Commission found a reason it could make this claim:
The Commission’s permit condition was based upon the premise that, because the new house would impede the public’s ability to view the beach and ocean along the adjacent highway, the easement compensated for this loss by providing the public with physical beach access.
Novel – swapping highway view for pedestrian access.
The Nollans objected to this condition and, ultimately, sued the Commission in
Represented by Pacific Legal Foundation (PLF) attorneys [”Rescuing liberty from the grasp of government.”], the Nollans argued that conditioning their permit upon the granting of a public easement constituted a “taking” of their private property for public use without [due process and] just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
Sidebar on the Takings and Due Process Clauses:
Takings and Due Process Clauses
· “Takings Clause”. Fifth Amendment: “no shall private property be taken for public use without just compensation.”
· “Due Process Clause”. Fifth Amendment: “nor be deprived of life, liberty, or property, without due process of law.”
Over the years, and in the context of the litigation that got me picketed, I became an amateur expert in these provisions, and in particular their implications for both regulatory takings (impairment of value rather than physical invasion) and eminent domain for economic development (ED4ED).
PLF took the Nollan case up to the United States Supreme Court which ruled in a landmark decision that government entities may not use their permitting authority as a means to extract property concessions from landowners. The Court held that a land exaction imposed as a permit condition may constitute a taking unless there is a “nexus” between an adverse impact caused by the permitted activity and the permit condition imposed.
Got that? If my improvement of the property hurts abutters or the community, then an approving authority is within its rights either to reject me or to demand that I compensate it somehow before it will approve.
That is, if the development in question creates a public need or imposes a burden on the public, then the government may impose a condition to meet the public need or alleviate the burden. In the Nollans’ case, however, there was no nexus. Although the new development might block the view from the highway, the easement across the Nollans’ property would in no way mitigate that viewshed loss. Thus, the imposition of the easement as a condition for the building permit constituted a “taking” of the Nollans’ private property.
Nollan was (forgive the pun) a watershed in regulatory takings jurisprudence, each case litigated to the highest levels by the same property-advocacy law foundations.
Nearly a score of years after Nollan, the Pacific Legal Foundation is at it again, with another beach-access case:
As we will discover below, the legal meaning of ‘beach’ is contestable.
PLF’s suit demands that government officials cease applying the Act to strip property owners of their homes and land without just compensation.
“For too long, state and local government officials have used the Open Beaches Act as an excuse to take valuable beachfront property without constitutional due process or just compensation,” said J. David Breemer, a lawyer with Pacific Legal Foundation. “This suit aims to strike down GLO Commissioner Patterson’s policy of applying the Act to impose the public beach on private property based on the movement of vegetation, in violation of the United States Constitution.”
Fear the movement of vegetation!
Vegetation on the move!
The roll of important regulatory-takings decisions includes:
· 1987: First English. When a locality prevented the
· 1992: Lucas v. South Carolina Coastal Commission. An ex post facto ordinance that prevented development of two oceanfront lots on the Isle of Palms near
Mr. Lucas’s undevelopable lots: economic value taken.
· 1992: Yee v. Escondido. A regulatory taking of economic value (unilaterally capping the rents that owners of mobile home pads may charge their mobile home owners) is not a ‘physical invasion’ for takings jurisprudence.
· 2000: Palazzolo v Rhode Island. Preventing development by imposing an ex post facto wetlands requirement constitutes value impairment triggering a regulatory taking.
· 2002: Tahoe-Sierra. Establishing an ex post facto development moratorium even on the laudable grounds of preserving
· 2002: Franconia and Grass Valley Terrace. Unilateral Congressional moratorium on prepayment of Farmers Home Section 515 mortgages (and the properties’ resulting conversion to market use) is a compensable regulatory taking.
· 2005: Cienega Gardens v. HUD. Enactment of a statute, the Emergency Low Income Housing Preservation Act, ELIHPA, that precluded owners of HUD affordable properties eligible to go market from doing so, constituted a compensable breach of contract by HUD (link in .pdf). This case has gone through an unbelievable series of remands and appeals; it is still ongoing.
Thus the trail that began with the Nollans’ beach access found its way into critical jurisprudence relating to affordable housing.
Finally, last summer’s Kelo v. New London decision, which as blog readers know touched off a furor of public backlash, represents in some sense the culmination of the property advocates’ two-decade effort to push these issues up to the Supreme Court, to check what they see as an overweening government that bruises property owners’ rights with little concern and less accountability.
Supreme Court swings like a pendulum do.
Actually, the pendulum has swung way too far, with a spectacularly ill-designed measure now on the California state ballot.
If you think that addressing these issues started twenty years ago, you’re off by a factor of ten. For the judicial origins of these precedents, we have to jump back two hundred years, to the English Enclosure Acts.
[Continued tomorrow in Part 3.]
