| The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. |
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)
From time-to-time, and when we're in the neighborhood, we like to drop by the sites of familiar (and famous) takings and land use cases. Like Kaiser Aetna (in our own backyard), Dolan, and PruneYard. We've been there, done that.
So there we were in Central California (Ventura County to be exact), and we're driving up the coastal highway when around the bend comes the site of the Nollan case, the one where the California Coastal Commission tried to condition permission for Mr. Nollan to build a second story on his dream house on his giving the public access across the beach in front of his house ("makai," as we in Hawaii say).
So here you go, some photos of the lot, the beach, the other areas described in Justice Scalia's opinion, and the view from the road. These should give you a sense of what the case was about, and why it came out the way it did.
And yes, we snapped the beachside photos by only temporarily "physically occupying" the private beach, but we do recognize the gravity of our trespass. See 483 U.S. at 823 (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.").
A panorama from the ocean side, with "the Cove" on the right,
which shows the seawall and beach.
| These effects of construction of the house, along with other area development, would cumulatively 'burden the public's ability to traverse to and along the shorefront.' Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. |
And one from the road side of the lot, showing the neighboring houses,
and how the houses generally obstruct views from the road to the beach.
| On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a ‘wall' of residential structures" that would prevent the public "psychologically . . . from realizing a stretch of coastline exists nearby that they have every right to visit." |
Looking east from the coastal road towards the nearby hills.
The main highway (U.S. 101) is behind that stand of palm trees.
| 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. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. |
Space for a viewing platform, anyone?
| JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that, in its absence, a person looking toward the beach from the road will see a street of residential structures, including the Nollans' new home, and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach, and that a person looking from the road would not be able to see it at all. |
"Lateral access"
"The Cove" (south of the lot)
Faria County Park, "a quarter-mile north of their property"
Small town.
| The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that, of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. |
