Nollan v. California Costal Commission
483 U.S. 825 (1987)
The Nollans leased a piece of
beachfront property with a shabby bungalow on it. They sub-leased the
bungalow to vacationers. Eventually they exercised their option to buy
the property. They decided to demolish the bungalow and replace it with
The Nollans' property
extended to the high tide mark, which meant that during low tide, the
public could cross the beach, but at high tide, they'd have to walk
across Nollan's beach or get wet feet.
The California Costal
Commission, which gave out building permits, granted a permit on the
condition that an easement was created to allow the public to cross the
This form of regulatory
blackmail is called an exaction.
Nollan filed a petition with
the County Court to invalidate the easement condition. The Court remanded the issue to the Commission for a
Nollan argued that the new
building would have no impact on public access to the beach, so it was an
At a hearing, the Commission
reaffirmed the requirement for an easement. Nollan appealed.
The Trial Court ruled in favor
of Nollan, the Commission appealed.
The Appellate Court reversed.
The Appellate Court found
that the easement was not a taking.
The US Supreme Court reversed.
The US Supreme Court noted
that if the Commission had simply required the Nollans to grant them an easement, rather than conditioning the permit on the
creation of the easement,
then it would undoubtedly have been a per se taking, and unconstitutional under the 14th Amendment
However, a land-use
regulation is not a taking when
it substantially advances a legitimate State interest.
The Court found that
requiring an exaction to get a
permit is constitutional, but only if there is an "essential
nexus" between the proposed development and a legitimate State
Basically, the exaction has to be related to the proposed
development. For example, if you want to build a house that blocks a
view of the beach, they could force an easement to create a viewing area on your property in
order to make up for the lack of view.
The consideration the city
is asking for has to be a replacement for what the landowner is taking
Exactly how closely the
two must be related was left up in the air. The later case of Dolan
v. City of Tigard (512 U.S. 374
(1994)) provided some guidance on what exactly constitutes an
However, when the exaction is for something that has nothing to do with
the proposed development, then that would be unconstitutional.
The Nollans' new house
would block no more beach access than the bungalow did. Therefore it
was an unconstitutional taking to
require an easement for
beach access to grant the permit.
If the Nollans were
building a house on an unimproved lot that had been used for beach
access, then it would be ok to require an easement to ensure continued
In a dissent, it was argued
that the Commission could have simply told Nolan he couldn't build his
house at all because it would block the view, that would be perfectly
legal. However, when they offer a deal to Nollan that he can't build his
house unless he gives an easement,
that was not legal. Does that make sense?
How would it be a taking to give a landowner more options than you
legally could do?
If the Commission had asked
Nollan to pay a donation into some city improvement fund, that would also
be perfectly legal since it wouldn't put any restrictions on Nollan's