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THE FOLLOWING IS THE CASE: 

Nollan v. California Coastal Commission

483 U.S. 825; 107 S.Ct. 2389 (1987)

[The Nollans owned a beachfront lot in Ventura County, California. They wanted to replace their dilapidated bungalow on their land with a three-bedroom house, and they applied for a permit from the California Coastal Commission. The commission would only grant the permit if the Nollans would dedicate an easement across their land for the public to have greater access to the beach. The Nollans thought this condition was an unlawful taking of their property, which was illegal under the Fifth Amendment to the U.S. Constitution. The trial court agreed and issued an order (called a writ of mandamus) removing the dedication and granting the permit. On appeal, the court of appeal reversed the lower court and allowed the dedication requirement. The court held that, even though the dedication significantly reduced the value of the Nollans’ property, it did not deprive them of all use of the land. Therefore, the appeals court held that the condition did not amount to a taking.

The California Supreme Court refused to hear the appeal, but the U.S. Supreme Court accepted the case].

SCALIA, JUSTICE. 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, we have no doubt there would have been a taking.

To say that the appropriation of a public easement across a landowner’s prem-ises does not constitute the taking of a property interest but rather “a mere restriction on its use” is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them.

Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases’ analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, “the right to exclude [others is] one of the most essential sticks in the bundle of rights that are com-

mainly characterized as property.”

We observed that where governmental action results in “a permanent physi-cal occupation” of the property, by the government itself or by others, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. “We think a permanent physical occupation has occurred, for purposes of that rule, where individuals are 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.”

Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land use permit alters the outcome. We have long recognized that land use regulation does not effect a taking if it “substantially advances legitimate state interests” and does not “deny an owner economically viable use of his land.” However, a use restriction may constitute a “taking” if not reasonably necessary to the effectuation of a substantial government purpose. Our cases have not elaborated on the standards for determining what constitutes a “legitimate state interest” or what type of connection between the regulation and the state interest satisfies the requirement that the former substantially advance the latter. They have made clear, how-ever, that a broad range of governmental purposes and regulations satisfies these requirements.

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 to forbid construction of the house altogether, imposition of the condition would also be constitutional.

The Commission claims that the condition at issue here is reasonably related to the public need or burden that the Nollans’ new house creates or to which it con-tributes. We can accept, for purposes of discussion, the Commission’s proposed test as to how close a “fit” between the condition and the burden is required, because we find that this case does not meet even the most untailored standards.

The Commission’s principal contention to the contrary essentially turns on a play on the word “access.”

The Nollans’ new house, the Commission found, will interfere with “visual access” to the beach. That in turn (along with other shorefront development) will

– interfere with the desire of people who drive past the Nollans’ house to use the beach, thus creating a “psychological barrier” to “access.”

Rewriting 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.

The Commission may well be right that 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. Rather, California is free to advance its “comprehen-sive program,” if it wishes, by using its power of eminent domain for this “public purpose.” If the Commission wants an easement across the Nollans’ property, it must pay for it.