Nollan v. California Coastal Commission

No. 86-133

Argued March 30, 1987

Decided June 26, 1987

483 U.S. 825

APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA,

SECOND APPELLATE DISTRICT

Syllabus



The California Coastal Commission granted a permit to appellants to

replace a small bungalow on their beachfront lot with a larger house

upon the condition that they allow the public an easement to pass across

their beach, which was located between two public beaches.  The County

Superior Court granted appellants a writ of administrative mandamus and

directed that the permit condition be struck.  However, the State Court

of Appeal reversed, ruling that imposition of the condition did not

violate the Takings Clause of the Fifth Amendment, as incorporated

against the States by the Fourteenth Amendment.



Held:



1. Although the outright taking of an uncompensated, permanent, public

access easement would violate the Takings Clause, conditioning

appellants' rebuilding permit on their granting such an easement would

be lawful land use regulation if it substantially furthered governmental

purposes that would justify denial of the permit.  The government's

power to forbid particular land uses in order to advance some legitimate

police power purpose includes the power to condition such use upon some

concession by the owner, even a concession of property rights, so long

as the condition furthers the same governmental purpose advanced as

justification for prohibiting the use.



2. Here, the Commission's imposition of the access easement condition

cannot be treated as an exercise of land use regulation power, since the

condition does not serve public purposes related to the permit

requirement.  Of those put forth to justify it -- protecting the

public's ability to see the beach, assisting the public in overcoming a

perceived "psychological" barrier to using the beach, and preventing

beach congestion -- none is plausible.  Moreover, the Commission's

justification for the access requirement unrelated to land use

regulation -- that it is part of a comprehensive program to provide

beach access arising from prior coastal permit decisions -- is simply an

expression of the belief that the public interest will be served by a

continuous strip of publicly accessible beach.  Although the State is

free to advance its "comprehensive program" by exercising its eminent

domain power and paying for access easements, it [483 U.S. 826] cannot

compel coastal residents alone to contribute to the realization of that

goal.



177 Cal.App.3d 719, 223 Cal.Rptr. 28, reversed.



SCALIA, J., delivered the opinion of the Court, in which REHNQUIST,

C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined.  BRENNAN, J., filed

a dissenting opinion, in which MARSHALL, J., joined, post   BLACKMUN,

J., filed a dissenting opinion, post   STEVENS, J., filed a dissenting

opinion, in which BLACKMUN, J., joined, post  [483 U.S. 827] SCALIA, J.,

lead opinion



JUSTICE SCALIA delivered the opinion of the Court.



James and Marilyn Nollan appeal from a decision of the California Court

of Appeal ruling that the California Coastal Commission could condition

its grant of permission to rebuild their house on their transfer to the

public of an easement across their beachfront property.  177 Cal.App.3d

719, 223 Cal.Rptr. 28 (1986).  The California court rejected their claim

that imposition of that condition violates the Takings Clause of the

Fifth Amendment, as incorporated against the States by the Fourteenth

Amendment.  Ibid.  We noted probable jurisdiction.  479 U.S. 913 (1986).

I



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.



The Nollans originally leased their property with an option to buy.  The

building on the lot was a small bungalow, totaling 504 square feet,

which for a time they rented to summer vacationers.  After years of

rental use, however, the building had fallen into disrepair, and could

no longer be rented out. [483 U.S. 828]



The Nollans' option to purchase was conditioned on their promise to

demolish the bungalow and replace it.  In order to do so, under

Cal.Pub.Res.Code Ann.  30106, 30212, and 30600 (West 1986), they were

required to obtain a coastal development permit from the California

Coastal Commission.  On February 25, 1982, they submitted a permit

application to the Commission in which they proposed to demolish the

existing structure and replace it with a three-bedroom house in keeping

with the rest of the neighborhood.



The Nollans were informed that their application had been placed on the

administrative calendar, and that the Commission staff had recommended

that the permit be granted subject to the condition that they allow the

public an easement to pass across a portion of their property bounded by

the mean high tide line on one side and their seawall on the other side.

 This would make it easier for the public to get to Faria County Park

and the Cove.  The Nollans protested imposition of the condition, but

the Commission overruled their objections and granted the permit subject

to their recordation of a deed restriction granting the easement.  App.

31, 34.



On June 3, 1982, the Nollans filed a petition for writ of administrative

mandamus asking the Ventura County Superior Court to invalidate the

access condition.  They argued that the condition could not be imposed

absent evidence that their proposed development would have a direct

adverse impact on public access to the beach.  The court agreed, and

remanded the case to the Commission for a full evidentiary hearing on

that issue.  Id. at 36.



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 [483 U.S. 829] to visit."  Id. at 58.  The new house would also

increase private use of the shorefront.  Id. at 59.  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."  Id. at 65-66.  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.  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.  Id. at 47-48.



The Nollans filed a supplemental petition for a writ of administrative

mandamus with the Superior Court, in which they argued that imposition

of the access condition violated the Takings Clause of the Fifth

Amendment, as incorporated against the States by the Fourteenth

Amendment.  The Superior Court ruled in their favor on statutory

grounds, finding, in part to avoid "issues of constitutionality," that

the California Coastal Act of 1976, Cal.Pub.Res.Code Ann.  30000 et seq.

(West 1986), authorized the Commission to impose public access

conditions on coastal development permits for the replacement of an

existing single-family home with a new one only where the proposed

development would have an adverse impact on public access to the sea. 

App. 419.  In the court's view, the administrative record did not

provide an adequate factual basis for concluding that replacement of the

bungalow with the house would create a direct or cumulative burden on

public access to the sea.  Id. at 416-417.  Accordingly, the Superior

Court granted the writ of mandamus and directed that the permit

condition be struck.



The Commission appealed to the California Court of Appeal.  While that

appeal was pending, the Nollans satisfied [483 U.S. 830] the condition

on their option to purchase by tearing down the bungalow and building

the new house, and bought the property.  They did not notify the

Commission that they were taking that action.



The Court of Appeal reversed the Superior Court.  177 Cal.App.3d 719,

223 Cal.Rptr. 28 (1986).  It disagreed with the Superior Court's

interpretation of the Coastal Act, finding that it required that a

coastal permit for the construction of a new house whose floor area,

height or bulk was more than 10% larger than that of the house it was

replacing be conditioned on a grant of access.  Id. at 723-724, 223

Cal.Rptr. at 31; see Cal.Pub.Res.Code Ann.  30212.  It also ruled that

that requirement did not violate the Constitution under the reasoning of

an earlier case of the Court of Appeal, Grupe v. California Coastal

Comm'n, 166 Cal.App.3d 148, 212 Cal.Rptr. 578 (1985).  In that case, the

court had found that, so long as a project contributed to the need for

public access, 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.  177 Cal.App.3d at 723, 223 Cal.Rptr. at 30-31; see

Grupe, supra, at 165-168, 212 Cal.Rptr. at 587-590; see also Remmenga v.

California Coastal Comm'n, 163 Cal.App.3d 623, 628, 209 Cal.Rptr. 628,

631, appeal dism'd, 474 U.S. 915 (1985).  The Court of Appeal ruled that

the record established that that was the situation with respect to the

Nollans' house.  177 Cal.App.3d at 722-723, 223 Cal.Rptr. at 30-31.  It

ruled that the Nollans' taking claim also failed because, although the

condition diminished the value of the Nollans' lot, it did not deprive

them of all reasonable use of their property.  Id. at 723, 223 Cal.Rptr.

at 30; see Grupe, supra, at 175-176, 212 Cal.Rptr. at 595-596.  Since,

in the Court of Appeal's view, there was no statutory or constitutional

obstacle to imposition [483 U.S. 831] of the access condition, the

Superior Court erred in granting the writ of mandamus.  The Nollans

appealed to this Court, raising only the constitutional question. II



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 premises does not constitute the

taking of a property interest, but rather (as JUSTICE BRENNAN contends)

"a mere restriction on its use," post at  n. 3, 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.  J. Sackman, 1 Nichols on Eminent Domain  2.1[1]

(Rev. 3d ed.1985), 2 id.  5.01[5]; see 1 id.  1.42[9], 2 id.  6.14. 

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 commonly

characterized as property.'"  Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States,

444 U.S. 164, 176 (1979).  In Loretto, we observed that, where

governmental action results in "[a] permanent physical occupation" of

the property, by the government itself or by others, see 458 U.S. at  n.

9, our cases uniformly have found a taking to the extent of the

occupation, without regard to whether the action achieves an important

public [483 U.S. 832] benefit or has only minimal economic impact on the

owner, id. at   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.



JUSTICE BRENNAN argues that, while this might ordinarily be the case,

the California Constitution's prohibition on any individual's

"exclu[ding] the right of way to [any navigable] water whenever it is

required for any public purpose," Art. X,  4, produces a different

result here.  Post at  see also post at 855, 857.  There are a number of

difficulties with that argument.  Most obviously, the right of way

sought here is not naturally described as one to navigable water (from

the street to the sea), but along it; it is at least highly questionable

whether the text of the California Constitution has any prima facie

application to the situation before us.  Even if it does, however,

several California cases suggest that JUSTICE BRENNAN's interpretation

of the effect of the clause is erroneous, and that, to obtain easements

of access across private property, the State must proceed through its

eminent domain power.  See Bolsa Land Co. v. Burdick, 151 Cal.254, 260,

90 P. 532, 534-535 (1907); Oakland v. Oakland Water Front Co., 118

Cal.160, 185, 50 P. 277, 286 (1897); Heist v. County of Colusa, 163

Cal.App.3d 841, 851, 213 Cal.Rptr. 278, 285 (1984); Aptos Seascape Corp.

v. Santa Cruz, 138 Cal.App.3d 484, 505-506, 188 Cal.Rptr.191, 204-205

(1982).  (None of these cases specifically addressed [483 U.S. 833] the

argument that Art. X,  4, allowed the public to cross private property

to get to navigable water, but if that provision meant what JUSTICE

BRENNAN believes, it is hard to see why it was not invoked.)  See also

41 Op.Cal.Atty.Gen. 39, 41 (1963) ("In spite of the sweeping provisions

of [Art. X,  4], and the injunction therein to the Legislature to give

its provisions the most liberal interpretation, the few reported cases

in California have adopted the general rule that one may not trespass on

private land to get to navigable tidewaters for the purpose of commerce,

navigation or fishing").  In light of these uncertainties, and given the

fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest

its decision on Art. X,  4, post at 865, we should assuredly not take it

upon ourselves to resolve this question of California constitutional law

in the first instance.  See, e.g., Jenkins v. Anderson, 447 U.S. 231,

234, n. 1 (1980).  That would be doubly inappropriate since the

Commission did not advance this argument in the Court of Appeal, and the

Nollans argued in the Superior Court that any claim that there was a

preexisting public right of access had to be asserted through a quiet

title action, see Points and Authorities in Support of Motion for Writ

of Administrative Mandamus, No. SP50805 (Super.Ct.Cal.), p. 20, which

the Commission, possessing no claim to the easement itself, probably

would not have had standing under California law to bring.  See Cal.Code

Civ.Proc.Ann.  738 (West 1980). [483 U.S. 834]



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 advance[s]

legitimate state interests" and does not "den[y] an owner economically

viable use of his land,"  Agins v. Tiburon, 447 U.S. 255, 260 (1980). 

See also Penn Central Transportation Co. v. New York City, 438 U.S. 104,

127 (1978) ("[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, however, that a [483 U.S. 835] broad range of

governmental purposes and regulations satisfies these requirements.  See

Agins v. Tiburon, supra, at (scenic zoning); Penn Central Transportation

Co. v. New York City, supra, (landmark preservation); Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926) (residential zoning); Laitos & Westfall,

Government Interference with Private Interests in Public Resources, 11

Harv.Envtl.L.Rev. 1, 66 (1987).  The Commission argues that among these

permissible purposes are 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, and preventing

congestion on the public beaches.  We assume, without deciding, that

this is so -- in which case, the Commission unquestionably would be able

to deny the Nollans their permit outright if their new house (alone, or

by reason of the cumulative impact produced in conjunction with other

construction) would substantially impede these purposes, [483 U.S. 836]

unless the denial would interfere so drastically with the Nollans' use

of their property as to constitute a taking.  See Penn Central

Transportation Co. v. New York City, supra.



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.  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, even a concession of property rights,

that serves the same end.  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 [483 U.S.

837] owner an alternative to that prohibition which accomplishes the

same purpose is not.



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.

 While a ban on shouting fire can be a core exercise of the State's

police power to protect the public safety, and can thus meet even our

stringent standards for regulation of speech, adding the unrelated

condition alters the purpose to one which, while it may be legitimate,

is inadequate to sustain the ban.  Therefore, even though, in a sense,

requiring a $100 tax contribution in order to shout fire is a lesser

restriction on speech than an outright ban, it would not pass

constitutional muster.  Similarly here, the 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.  Whatever may

be the outer limits of "legitimate state interests" in the takings and

land use context, this is not one of them.  In short, unless the permit

condition serves the same governmental purpose as the development ban,

the building restriction is not a valid regulation of land use, but "an

out-and-out plan of extortion."  J. E. D. Associates, Inc. v. Atkinson,

121 N. H. 581, 584, 432 A.2d 12, 14-15 (1981); see Brief for United

States as Amicus Curiae 22, and n. 20.  See also Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. at 439, n. 17. [483 U.S. 838] III



The Commission claims that it concedes as much, and that we may sustain

the condition at issue here by finding that it is reasonably related to

the public need or burden that the Nollans' new house creates or to

which it contributes.  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."  The Nollans' new house will also,

by a process not altogether clear from the Commission's opinion but

presumably potent enough to more than offset the effects of the

psychological barrier, increase the use of the public beaches, thus

creating the need for more "access."  These burdens on "access" would be

alleviated by a requirement that the Nollans provide "lateral access" to

the beach.



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 [483 U.S. 839]

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.  See Parks v. Watson, 716 F.2d 646,

651-653 (CA9 1983); Bethlehem Evangelical Lutheran Church v. Lakewood,

626 P.2d 668, 671-674 (Colo.1981); Aunt Hack Ridge Estates, Inc. v.

Planning Comm'n, 160 Conn.109, 117-120, 273 A.2d 880, 885 (1970);

Longboat Key v. Lands End, Ltd., 433 So.2d 574 (Fla.App.1983); Pioneer

Trust & Savings Bank v. Mount Prospect, 22 Ill.2d 375, 380, 176 N.E.2d

799, 802 (1961); Lampton v. Pinaire, 610 S.W.2d 915, 918-919

(Ky.App.1980); Schwing v. Baton Rouge, 249 So.2d 304 (La.App.),

application denied, 259 La. 770, 252 So.2d 667 (1971); Howard County v.

JJM, Inc., 301 Md. 256, 280-282, 482 A.2d 908, 920-921 (1984); Collis v.

Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976); State ex rel. Noland v.

St. Louis County, 478 S.W.2d 363 (Mo.1972); [483 U.S. 840] Billings

Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d

182, 187-188 (1964); Simpson v. North Platte, 206 Neb. 240, 292 N.W.2d

297 (1980); Briar West, Inc. v. Lincoln, 206 Neb. 172, 291 N.W.2d 730

(1980); J. E. D. Associates v. Atkinson, 121 N. H. 581, 432 A.2d 12

(1981); Longridge Builders, Inc. v. Planning Bd. of Princeton, 52 N.J.

348, 350-351, 245 A.2d 336, 337-338 (1968); Jenad, Inc. v. Scarsdale, 18

N.Y.2d 78, 218 N.E.2d 673 (1966); MacKall v. White, 85App.Div.2d 696,

445 N.Y.S.2d 486 (1981), appeal denied, 56 N.Y.2d 503, 435 N.E.2d 1100

(1982); Frank Ansuini, Inc. v. Cranston, 107 R.I. 63, 68-69, 71, 264

A.2d 910, 913, 914 (1970); College Station v. Turtle Rock Corp., 680

S.W.2d 802, 807 (Tex.1984); Call v. West Jordan, 614 P.2d 1257,

1258-1259 (Utah 1980); Board of Supervisors of James City County v.

Rowe, 216 Va. 128, 136-139, 216 S.E.2d 199, 207-209 (1975); Jordan v.

Menomonee Falls, 28 Wis.2d 608, 617-618, 137 N.W.2d 442, 447-449 (1965),

appeal dism'd, 385 U.S. 4 (1966).  See also Littlefield v. Afton, 785

F.2d 596, 607 (CA8 1986); Brief for National Association of Home

Builders et al. as Amici Curiae 9-16.



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   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. 

App. 57-59.



Even if the Commission had made the finding that JUSTICE BRENNAN

proposes, however, it is not certain that it would [483 U.S. 841]

suffice.  We do not share JUSTICE BRENNAN's confidence that the

Commission should have little difficulty in the future in utilizing its

expertise to demonstrate a specific connection between provisions for

access and burdens on access, post at 862, that will avoid the effect of

today's decision.  We view the Fifth Amendment's Property Clause to be

more than a pleading requirement, and compliance with it to be more than

an exercise in cleverness and imagination.  As indicated earlier, our

cases describe the condition for abridgment of property rights through

the police power as a "substantial advanc[ing]" of a legitimate state

interest.  We are inclined to be particularly careful about the

adjective where the actual conveyance of property is made a condition to

the lifting of a land use restriction, since in that context there is

heightened risk that the purpose is avoidance of the compensation

requirement, rather than the stated police power objective.



We are left, then, with the Commission's justification for the access

requirement unrelated to land use regulation: Finally, the Commission

notes that there are several existing provisions of pass and repass

lateral access benefits already given by past Faria Beach Tract

applicants as a result of prior coastal permit decisions.  The access

required as a condition of this permit is part of a comprehensive

program to provide continuous public access along Faria Beach as the

lots undergo development or redevelopment. App. 68.  That is simply an

expression of the Commission's belief that the public interest will be

served by a continuous strip of publicly accessible beach along the

coast.  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 "comprehensive program," if it wishes,

by using its power of eminent domain for this "public purpose," [483

U.S. 842] see U.S.Const., Amdt. 5; but if it wants an easement across

the Nollans' property, it must pay for it.



Reversed. BRENNAN, J., dissenting



JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.



Appellants in this case sought to construct a new dwelling on their

beach lot that would both diminish visual access to the beach and move

private development closer to the public tidelands.  The Commission

reasonably concluded that such "buildout," both individually and

cumulatively, threatens public access to the shore.  It sought to offset

this encroachment by obtaining assurance that the public may walk along

the shoreline in order to gain access to the ocean.  The Court finds

this an illegitimate exercise of the police power, because it maintains

that there is no reasonable relationship between the effect of the

development and the condition imposed.



The first problem with this conclusion is that the Court imposes a

standard of precision for the exercise of a State's police power that

has been discredited for the better part of this century.  Furthermore,

even under the Court's cramped standard, the permit condition imposed in

this case directly responds to the specific type of burden on access

created by appellants' development.  Finally, a review of those factors

deemed most significant in takings analysis makes clear that the

Commission's action implicates none of the concerns underlying the

Takings Clause.  The Court has thus struck down the Commission's

reasonable effort to respond to intensified development along the

California coast, on behalf of landowners who can make no claim that

their reasonable expectations have been disrupted.  The Court has, in

short, given appellants a windfall at the expense of the public. I



The Court's conclusion that the permit condition imposed on appellants

is unreasonable cannot withstand analysis.  First, the Court demands a

degree of exactitude that is inconsistent [483 U.S. 843] with our

standard for reviewing the rationality of a State's exercise of its

police power for the welfare of its citizens.  Second, even if the

nature of the public access condition imposed must be identical to the

precise burden on access created by appellants, this requirement is

plainly satisfied. A



There can be no dispute that the police power of the States encompasses

the authority to impose conditions on private development.  See, e.g.,

Agins v. Tiburon, 447 U.S. 255 (1980); Penn Central Transportation Co.

v. New York City, 438 U.S. 104 (1978); Gorieb v. Fox, 274 U.S. 603

(1927).  It is also by now commonplace that this Court's review of the

rationality of a State's exercise of its police power demands only that

the State "could rationally have decided" that the measure adopted might

achieve the State's objective.  Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 466 (1981) (emphasis in original).  In this case,

California has [483 U.S. 844] employed its police power in order to

condition development upon preservation of public access to the ocean

and tidelands.  The Coastal Commission, if it had so chosen, could have

denied [483 U.S. 845] the Nollans' request for a development permit,

since the property would have remained economically viable without the

requested new development.  Instead, the State sought to accommodate the

Nollans' desire for new development, on the condition that the

development not diminish the overall amount of public access to the

coastline.  Appellants' proposed development would reduce public access

by restricting visual access to the beach, by contributing to an

increased need for community facilities, and by moving private

development closer to public beach property.  The Commission sought to

offset this diminution in access, and thereby preserve the overall

balance of access, by requesting a deed restriction that would ensure

"lateral" access: the right of the public to pass and repass along the

dry sand parallel to the shoreline in order to reach the tidelands and

the ocean.  In the expert opinion of the Coastal Commission, development

conditioned on such a restriction would fairly attend to both public and

private interests.



The Court finds fault with this measure because it regards the condition

as insufficiently tailored to address the precise [483 U.S. 846] type of

reduction in access produced by the new development.  The Nollans'

development blocks visual access, the Court tells us, while the

Commission seeks to preserve lateral access along the coastline.  Thus,

it concludes, the State acted irrationally.  Such a narrow conception of

rationality, however, has long since been discredited as a judicial

arrogation of legislative authority. To make scientific precision a

criterion of constitutional power would be to subject the State to an

intolerable supervision hostile to the basic principles of our

Government. Sproles v. Binford, 286 U.S. 374, 388 (1932).  Cf. Keystone

Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491, n. 21 (1987)

("The Takings Clause has never been read to require the States or the

courts to calculate whether a specific individual has suffered burdens .

. . in excess of the benefits received").  As this Court long ago

declared with regard to various forms of restriction on the use of

property: Each interferes in the same way, if not to the same extent,

with the owner's general right of dominion over his property.  All rest

for their justification upon the same reasons which have arisen in

recent times as a result of the great increase and concentration of

population in urban communities and the vast changes in the extent and

complexity of the problems of modern city life.  State legislatures and

city councils, who deal with the situation from a practical standpoint,

are better qualified than the courts to determine the necessity,

character, and degree of regulation which these new and perplexing

conditions require; and their conclusions should not be disturbed by the

courts unless clearly arbitrary and unreasonable. Gorieb, 274 U.S. at

608 (citations omitted).



The Commission is charged by both the State Constitution and legislature

to preserve overall public access to the California coastline. 

Furthermore, by virtue of its participation in the Coastal Zone

Management Act (CZMA) program, the [483 U.S. 847] State must exercise

effectively [its] responsibilities in the coastal zone through the

development and implementation of management programs to achieve wise

use of the land and water resources of the coastal zone, 16 U.S.C. 

1452(2), so as to provide for, inter alia, "public access to the coas[t]

for recreation purposes."   1452(2)(D).  The Commission has sought to

discharge its responsibilities in a flexible manner.  It has sought to

balance private and public interests, and to accept tradeoffs:  to

permit development that reduces access in some ways as long as other

means of access are enhanced.  In this case, it has determined that the

Nollans' burden on access would be offset by a deed restriction that

formalizes the public's right to pass along the shore.  In its informed

judgment, such a tradeoff would preserve the net amount of public access

to the coastline.  The Court's insistence on a precise fit between the

forms of burden and condition on each individual parcel along the

California coast would penalize the Commission for its flexibility,

hampering the ability to fulfill its public trust mandate.



The Court's demand for this precise fit is based on the assumption that

private landowners in this case possess a reasonable expectation

regarding the use of their land that the public has attempted to

disrupt.  In fact, the situation is precisely the reverse:  it is

private landowners who are the interlopers.  The public's expectation of

access considerably antedates any private development on the coast. 

Article X,  4, of the California Constitution, adopted in 1879,

declares: No individual, partnership, or corporation, claiming or

possessing the frontage or tidal lands of a harbor, bay, inlet, estuary,

or other navigable water in this State, shall be permitted to exclude

the right of way to such water whenever it is required for any public

purpose, nor to destroy or obstruct the free navigation of such water;

and the Legislature shall enact such laws as will give the most liberal

construction to this provision, so [483 U.S. 848] that access to the

navigable waters of this State shall always be attainable for the people

thereof.



It is therefore private landowners who threaten the disruption of

settled public expectations.  Where a private landowner has had a

reasonable expectation that his or her property will be used for

exclusively private purposes, the disruption of this expectation

dictates that the government pay if it wishes the property to be used

for a public purpose.  In this case, however, the State has sought to

protect public expectations of access from disruption by private land

use.  The State's exercise of its police power for this purpose deserves

no less deference than any other measure designed to further the welfare

of state citizens.



Congress expressly stated in passing the CZMA that, [i]n light of

competing demands and the urgent need to protect and to give high

priority to natural systems in the coastal zone, present state and local

institutional arrangements for planning and regulating land and water

uses in such areas are inadequate. 16 U.S.C.  1451(h).  It is thus

puzzling that the Court characterizes as a "non-land use justification,"

ante at 841, the exercise of the police power to "`provide continuous

public access along Faria Beach as the lots undergo development or

redevelopment.'"  Ibid. (quoting App. 68).  The Commission's

determination that certain types of development jeopardize public access

to the ocean, and that such development should be conditioned on

preservation of access, is the essence of responsible land use planning.

 The Court's use of an unreasonably demanding standard for determining

the rationality of state regulation in this area thus could hamper

innovative efforts to preserve an increasingly fragile national

resource. [483 U.S. 849] B



Even if we accept the Court's unusual demand for a precise match between

the condition imposed and the specific type of burden on access created

by the appellants, the State's action easily satisfies this requirement.

 First, the lateral access condition serves to dissipate the impression

that the beach that lies behind the wall of homes along the shore is for

private use only.  It requires no exceptional imaginative powers to find

plausible the Commission's point that the average person passing along

the road in front of a phalanx of imposing permanent residences,

including the appellants' new home, is likely to conclude that this

particular portion of the shore is not open to the public.  If, however,

that person can see that numerous people are passing and repassing along

the dry sand, this conveys the message that the beach is in fact open

for use by the public.  Furthermore, those persons who go down to the

public beach a quarter-mile away will be able to look down the coastline

and see that persons have continuous access to the tidelands, and will

observe signs that proclaim the public's right of access over the dry

sand.  The burden produced by the diminution in visual access -- the

impression that the beach is not open to the public -- is thus directly

alleviated by the provision for public access over the dry sand.  The

Court therefore has an [483 U.S. 850] unrealistically limited conception

of what measures could reasonably be chosen to mitigate the burden

produced by a diminution of visual access.



The second flaw in the Court's analysis of the fit between burden and

exaction is more fundamental.  The Court assumes that the only burden

with which the Coastal Commission was concerned was blockage of visual

access to the beach.  This is incorrect.  The Commission specifically

stated in its report in support of the permit condition that [t]he

Commission finds that the applicants' proposed development would present

an increase in view blockage, an increase in private use of the

shorefront, and that this impact would burden the public's ability to

traverse to and along the shorefront. App. 65-66 (emphasis added).  It

declared that the possibility that "the public may get the impression

that the beachfront is no longer available for public use" would be due

to the encroaching nature of private use immediately adjacent to the

public use, as well as the visual "block" of increased residential

build-out impacting the visual quality of the beachfront. Id. at 59

(emphasis added).



The record prepared by the Commission is replete with references to the

threat to public access along the coastline resulting from the seaward

encroachment of private development along a beach whose mean high-tide

line is constantly shifting.  As the Commission observed in its report:

The Faria Beach shoreline fluctuates during the year depending on the

seasons and accompanying storms, and the public is not always able to

traverse the shoreline below the mean [483 U.S. 851] high tide line. Id.

at 67.  As a result, the boundary between publicly owned tidelands and

privately owned beach is not a stable one, and "[t]he existing seawall

is located very near to the mean high water line."  Id. at 61.  When the

beach is at its largest, the seawall is about 10 feet from the mean

high-tide mark; [d]uring the period of the year when the beach suffers

erosion, the mean high water line appears to be located either on or

beyond the existing seawall. Ibid.  Expansion of private development on

appellants' lot toward the seawall would thus increase private use

immediately adjacent to public tidelands, which has the potential of

causing adverse impacts on the public's ability to traverse the

shoreline. Id. at 62.  As the Commission explained: The placement of

more private use adjacent to public tidelands has the potential of

creating use conflicts between the applicants and the public.  The

results of new private use encroachment into boundary/buffer areas

between private and public property can create situations in which

landowners intimidate the public and seek to prevent them from using

public tidelands because of disputes between the two parties over where

the exact boundary between private and public ownership is located.  If

the applicants' project would result in further seaward encroachment of

private use into an area of clouded title, new private use in the

subject encroachment area could result in use conflict between private

and public entities on the subject shorefront. Id. at 61-62.



The deed restriction on which permit approval was conditioned would

directly address this threat to the public's access to the tidelands. 

It would provide a formal declaration of the public's right of access,

thereby ensuring that the shifting character of the tidelands, and the

presence of private development immediately adjacent to it, would not

jeopardize [483 U.S. 852] enjoyment of that right.  The imposition of

the permit condition was therefore directly related to the fact that

appellants' development would be located along a unique stretch of coast

where lateral public access is inadequate due to the construction of

private residential structures and shoreline protective devices along a

fluctuating shoreline. Id. at 68.  The deed restriction was crafted to

deal with the particular character of the beach along which appellants

sought to build, and with the specific problems created by expansion of

development toward the public tidelands.  In imposing the restriction,

the State sought to ensure that such development would not disrupt the

historical expectation of the public regarding access to the sea. [483

U.S. 853]



The Court is therefore simply wrong that there is no reasonable

relationship between the permit condition and the specific type of

burden on public access created by the appellants' proposed development.

 Even were the Court desirous of assuming the added responsibility of

closely monitoring the regulation of development along the California

coast, this record reveals rational public action by any conceivable

standard. II



The fact that the Commission's action is a legitimate exercise of the

police power does not, of course, insulate it from a takings challenge,

for when "regulation goes too far, it will be recognized as a taking." 

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).  Conventional

takings analysis underscores the implausibility of the Court's holding,

for it demonstrates that this exercise of California's police power

implicates none of the concerns that underlie our takings jurisprudence.



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.  Penn Central, 438 U.S.

at 124.  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 public is permitted the right

to pass and repass along the coast in an area from the seawall to the

mean high-tide mark.  App. 46.  This area is, at its widest, 10 feet,

id. at 61, which means that even without the permit condition, the

public's right of access permits it to pass on average within a few feet

of the seawall.  Passage closer to the 8-foot-high rocky seawall will

make the [483 U.S. 854] appellants even less visible to the public than

passage along the high-tide area farther out on the beach.  The

intrusiveness of such passage is even less than the intrusion resulting

from the required dedication of a sidewalk in front of private

residences, exactions which are commonplace conditions on approval of

development.  Furthermore, the high-tide line shifts throughout the

year, moving up to and beyond the seawall, so that public passage for a

portion of the year would either be impossible or would not occur on

appellant's property.  Finally, although the Commission had the

authority to provide for either passive or active recreational use of

the property, it chose the least intrusive alternative:  a mere right to

pass and repass.  Id. at 370.  As this Court made [483 U.S. 855] clear

in PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980), physical

access to private property, in itself, creates no takings problem if it

does not "unreasonably impair the value or use of [the] property." 

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 repass a few feet closer to the seawall beyond which

appellants' house is located.



PruneYard is also relevant in that we acknowledged in that case that

public access rested upon a "state constitutional . . . provision that

had been construed to create rights to the use of private property by

strangers."  Id. at 81.  In this case, of course, the State is also

acting to protect a state constitutional right.  See supra at (quoting

Art. X,  4, of California Constitution).  The constitutional provision

guaranteeing public access to the ocean states that the Legislature

shall enact such laws as will give the most liberal construction to this

provision so that access to the navigable waters of this State shall be

always attainable for the people thereof. Cal.Const., Art. X,  4

(emphasis added).  This provision is the explicit basis for the

statutory directive to provide for public access along the coast in new

development projects, Cal.Pub.Res.Code Ann.  30212 (West 1986), and has

been construed by the state judiciary to permit passage over private

land where necessary to gain access to the tidelands.  Grupe v.

California Coastal Comm'n, 166 Cal.App.3d 148, 171-172, 212 Cal.Rptr.

578, 592-593 (1985).  The physical access to the perimeter of

appellants' property at issue in this case thus results directly from

the State's enforcement of the State Constitution.



Finally, the character of the regulation in this case is not unilateral

government action, but a condition on approval of a development request

submitted by appellants.  The State has not sought to interfere with any

preexisting property interest, but has responded to appellants' proposal

to intensify development on the coast.  Appellants themselves chose to

[483 U.S. 856] submit a new development application, and could claim no

property interest in its approval.  They were aware that approval of

such development would be conditioned on preservation of adequate public

access to the ocean.  The State has initiated no action against

appellants' property; had the Nollans' not proposed more intensive

development in the coastal zone, they would never have been subject to

the provision that they challenge.



Examination of the economic impact of the Commission's action reinforces

the conclusion that no taking has occurred.  Allowing appellants to

intensify development along the coast in exchange for ensuring public

access to the ocean is a classic instance of government action that

produces a "reciprocity of advantage."  Pennsylvania Coal, 260 U.S. at

415.  Appellants have been allowed to replace a one-story,

521-square-foot beach home with a two-story, 1,674-squarefoot residence

and an attached two-car garage, resulting in development covering 2,464

square feet of the lot.  Such development obviously significantly

increases the value of appellants' property; appellants make no

contention that this increase is offset by any diminution in value

resulting from the deed restriction, much less that the restriction made

the property less valuable than it would have been without the new

construction.  Furthermore, appellants gain an additional benefit from

the Commission's permit condition program.  They are able to walk along

the beach beyond the confines of their own property only because the

Commission has required deed restrictions as a condition of approving

other new beach developments.  Thus, appellants benefit both as private

landowners and as members of the public from the fact that new

development permit requests are conditioned on preservation of public

access. [483 U.S. 857]



Ultimately, appellants' claim of economic injury is flawed because it

rests on the assumption of entitlement to the full value of their new

development.  Appellants submitted a proposal for more intensive

development of the coast, which the Commission was under no obligation

to approve, and now argue that a regulation designed to ameliorate the

impact of that development deprives them of the full value of their

improvements.  Even if this novel claim were somehow cognizable, it is

not significant.  "[T]he interest in anticipated gains has traditionally

been viewed as less compelling than other property-related interests." 

Andrus v. Allard, 444 U.S. 51, 66 (1979).



With respect to appellants' investment-backed expectations, appellants

can make no reasonable claim to any expectation of being able to exclude

members of the public from crossing the edge of their property to gain

access to the ocean.  It is axiomatic, of course, that state law is the

source of those strands that constitute a property owner's bundle of

property rights.  "[A]s a general proposition[,] the law of real

property is, under our Constitution, left to the individual States to

develop and administer."  Hughes v. Washington, 389 U.S. 290, 295 (1967)

(Stewart, J., concurring).  See also Borax Consolidated, Ltd. v. Los

Angeles, 296 U.S. 10, 22 (1935) ("Rights and interests in the tideland,

which is subject to the sovereignty of the State, are matters of local

law").  In this case, the State Constitution explicitly states that no

one possessing the "frontage" of any "navigable water in this State,

shall be permitted to exclude the right of way to such water whenever it

is required for any public purpose."  Cal.Const., Art. X,  4.  The state

Code expressly provides that, save for exceptions not relevant here,

"[p]ublic access from the nearest public roadway to the shoreline and

along the coast shall be provided in new development projects." 

Cal.Pub.Res.Code Ann.  30212 (West 1986).  The Coastal Commission

Interpretative Guidelines make clear that fulfillment of the

Commission's constitutional and statutory duty [483 U.S. 858] requires

that approval of new coastline development be conditioned upon

provisions ensuring lateral public access to the ocean.  App. 362.  At

the time of appellants' permit request, the Commission had conditioned

all 43 of the proposals for coastal new development in the Faria Family

Beach Tract on the provision of deed restrictions ensuring lateral

access along the shore.  Id. at 48.  Finally, the Faria family had

leased the beach property since the early part of this century, and the

Faria family and their lessees [including the Nollans] had not

interfered with public use of the beachfront within the Tract, so long

as public use was limited to pass and repass lateral access along the

shore. Ibid. California therefore has clearly established that the power

of exclusion for which appellants seek compensation simply is not a

strand in the bundle of appellants' property rights, and appellants have

never acted as if it were.  Given this state of affairs, appellants

cannot claim that the deed restriction has deprived them of a reasonable

expectation to exclude from their property persons desiring to gain

access to the sea.



Even were we somehow to concede a preexisting expectation of a right to

exclude, appellants were clearly on notice when requesting a new

development permit that a condition of approval would be a provision

ensuring public lateral access to the shore.  Thus, they surely could

have had no expectation that they could obtain approval of their new

development and exercise any right of exclusion afterward.  In this

respect, this case is quite similar to Ruckelshaus v. Monsanto Co., 467

U.S. 986 (1984).  In Monsanto, the respondent had submitted trade data

to the Environmental Protection Agency (EPA) for the purpose of

obtaining registration of certain pesticides.  The company claimed that

the agency's disclosure of certain data in accordance with the relevant

regulatory statute constituted a taking.  The Court conceded that the

data in question constituted property under state law.  It also found,

however, that certain of the data had been submitted to the agency after

Congress had [483 U.S. 859] made clear that only limited confidentiality

would be given data submitted for registration purposes.  The Court

observed that the statute served to inform Monsanto of the various

conditions under which data might be released, and stated: If, despite

the data-consideration and data-disclosure provisions in the statute,

Monsanto chose to submit the requisite data in order to receive a

registration, it can hardly argue that its reasonable investment-backed

expectations are disturbed when EPA acts to use or disclose the data in

a manner that was authorized by law at the time of the submission. The

Court rejected respondent's argument that the requirement that it

relinquish some confidentiality imposed an unconstitutional condition on

receipt of a Government benefit: [A]s long as Monsanto is aware of the

conditions under which the data are submitted, and the conditions are

rationally related to a legitimate Government interest, a voluntary

submission of data by an applicant in exchange for the economic

advantages of a registration can hardly be called a taking. Id. at 1007.



The similarity of this case to Monsanto is obvious.  Appellants were

aware that stringent regulation of development along the California

coast had been in place at least since 1976.  The specific deed

restriction to which the Commission sought to subject them had been

imposed since 1979 on all 43 shoreline new development projects in the

Faria Family Beach Tract.  App. 48.  Such regulation to ensure public

access to the ocean had been directly authorized by California citizens

in 1972, and reflected their judgment that restrictions on coastal

development represented "`the advantage of living and doing business in

a civilized community.'"  Andrus v. Allard, supra, at 67, quoting

Pennsylvania Coal Co. v. Mahon, 260 U.S. at 422 (Brandeis, J.,

dissenting).  The deed restriction was "authorized by law at the [483

U.S. 860] time of [appellants' permit] submission," Monsanto, supra, at

1007, and, as earlier analysis demonstrates, supra, at  was reasonably

related to the objective of ensuring public access.  Appellants thus

were on notice that new developments would be approved only if

provisions were made for lateral beach access.  In requesting a new

development permit from the Commission, they could have no reasonable

expectation of, and had no entitlement to, approval of their permit

application without any deed restriction ensuring public access to the

ocean.  As a result, analysis of appellants' investment-backed

expectations reveals that "the force of this factor is so overwhelming .

. . that it disposes of the taking question."  Monsanto, supra, at

1005.{10}



Standard Takings Clause analysis thus indicates that the Court employs

its unduly restrictive standard of police power rationality to find a

taking where neither the character of governmental action nor the nature

of the private interest affected raise any takings concern.  The result

is that the Court invalidates regulation that represents a reasonable

adjustment [483 U.S. 861] of the burdens and benefits of development

along the California coast. III



The foregoing analysis makes clear that the State has taken no property

from appellants.  Imposition of the permit condition in this case

represents the State's reasonable exercise of its police power.  The

Coastal Commission has drawn on its expertise to preserve the balance

between private development and public access by requiring that any

project that intensifies development on the increasingly crowded

California coast must be offset by gains in public access.  Under the

normal standard for review of the police power, this provision is

eminently reasonable.  Even accepting the Court's novel insistence on a

precise quid pro quo of burdens and benefits, there is a reasonable

relationship between the public benefit and the burden created by

appellants' development.  The movement of development closer to the

ocean creates the prospect of encroachment on public tidelands, because

of fluctuation in the mean high-tide line.  The deed restriction ensures

that disputes about the boundary between private and public property

will not deter the public from exercising its right to have access to

the sea.



Furthermore, consideration of the Commission's action under traditional

takings analysis underscores the absence of any viable takings claim. 

The deed restriction permits the public only to pass and repass along a

narrow strip of beach, a few feet closer to a seawall at the periphery

of appellants' property.  Appellants almost surely have enjoyed an

increase in the value of their property even with the restriction,

because they have been allowed to build a significantly larger new home

with garage on their lot.  Finally, appellants can claim the disruption

of no expectation interest, both because they have no right to exclude

the public under state law and because, even if they did, they had full

advance notice that new development along the coast is conditioned on

provisions for continued public access to the ocean. [483 U.S. 862]



Fortunately, the Court's decision regarding this application of the

Commission's permit program will probably have little ultimate impact

either on this parcel in particular or the Commission program in

general.  A preliminary study by a Senior Lands Agent in the State

Attorney General's Office indicates that the portion of the beach at

issue in this case likely belongs to the public.  App. 85.{11}  Since a

full study had not been completed at the time of appellants' permit

application, the deed restriction was requested "without regard to the

possibility that the applicant is proposing development on public land."

 Id. at 45.  Furthermore, analysis by the same Lands Agent also

indicated that the public had obtained a prescriptive right to the use

of Faria Beach from the seawall to the ocean.  Id. at 86.{12}  The

Superior Court explicitly stated in its ruling against the Commission on

the permit condition issue that no part of this opinion is intended to

foreclose the public's opportunity to adjudicate the possibility that

public rights in [appellants'] beach have been acquired through

prescriptive use. Id. at 420.



With respect to the permit condition program in general, the Commission

should have little difficulty in the future in utilizing its expertise

to demonstrate a specific connection between provisions for access and

burdens on access produced by new development.  Neither the Commission

in its report nor the State in its briefs and at argument highlighted

the particular threat to lateral access created by appellants' [483 U.S.

863] development project.  In defending its action, the State emphasized

the general point that overall access to the beach had been preserved,

since the diminution of access created by the project had been offset by

the gain in lateral access.  This approach is understandable, given that

the State relied on the reasonable assumption that its action was

justified under the normal standard of review for determining legitimate

exercises of a State's police power.  In the future, alerted to the

Court's apparently more demanding requirement, it need only make clear

that a provision for public access directly responds to a particular

type of burden on access created by a new development.  Even if I did

not believe that the record in this case satisfies this requirement, I

would have to acknowledge that the record's documentation of the impact

of coastal development indicates that the Commission should have little

problem presenting its findings in a way that avoids a takings problem.



Nonetheless, it is important to point out that the Court's insistence on

a precise accounting system in this case is insensitive to the fact that

increasing intensity of development in many areas calls for farsighted,

comprehensive planning that takes into account both the interdependence

of land uses and the cumulative impact of development.{13}  As one

scholar has noted: Property does not exist in isolation.  Particular

parcels are tied to one another in complex ways, and property is [483

U.S. 864] more accurately described as being inextricably part of a

network of relationships that is neither limited to, nor usefully

defined by, the property boundaries with which the legal system is

accustomed to dealing.  Frequently, use of any given parcel of property

is at the same time effectively a use of, or a demand upon, property

beyond the border of the user. Sax, Takings, Private Property, and

Public Rights, 81 Yale L.J. 149, 152 (1971) (footnote omitted).  As

Congress has declared: The key to more effective protection and use of

the land and water resources of the coastal zone [is for the states to]

develo[p] land and water use programs for the coastal zone, including

unified policies, criteria, standards, methods, and processes for

dealing with land and water use decisions of more than local

significance. 16 U.S.C.  1451(i).  This is clearly a call for a focus on

the overall impact of development on coastal areas.  State agencies

therefore require considerable flexibility in responding to private

desires for development in a way that guarantees the preservation of

public access to the coast.  They should be encouraged to regulate

development in the context of the overall balance of competing uses of

the shoreline.  The Court today does precisely the opposite, overruling

an eminently reasonable exercise of an expert state agency's judgment,

substituting its own narrow view of how this balance should be struck. 

Its reasoning is hardly suited to the complex reality of natural

resource protection in the 20th century.  I can only hope that today's

decision is an aberration, and that a broader vision ultimately

prevails.{14}



I dissent [483 U.S. 865] BLACKMUN, J., dissenting



JUSTICE BLACKMUN, dissenting.



I do not understand the Court's opinion in this case to implicate in any

way the public trust doctrine.  The Court certainly had no reason to

address the issue, for the Court of Appeal of California did not rest

its decision on Art. X,  4, of the California Constitution.  Nor did the

parties base their arguments before this Court on the doctrine.



I disagree with the Court's rigid interpretation of the necessary

correlation between a burden created by development and a condition

imposed pursuant to the State's police power to mitigate that burden. 

The land use problems this country faces require creative solutions. 

These are not advanced by an "eye for an eye" mentality.  The close

nexus between benefits and burdens that the Court now imposes on permit

conditions creates an anomaly in the ordinary requirement that a State's

exercise of its police power need be no more than rationally based. 

See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466

(1981).  In my view, the easement exacted from appellants and the

problems their development created are adequately related to the

governmental interest in providing public access to the beach.  Coastal

development, by its very, nature makes public access to the shore

generally more difficult.  Appellants' structure is part of that general

development and, in particular, it diminishes the public's visual access

to the ocean and decreases the public's sense that it may have physical

access to the beach.  These losses in access can be counteracted, at

least in part, by the condition on appellants' construction permitting

public passage that ensures access along the beach.



Traditional takings analysis compels the conclusion that there is no

taking here.  The governmental action is a valid exercise of the police

power, and, so far as the record reveals, [483 U.S. 866] has a

nonexistent economic effect on the value of appellants' property.  No

investment-backed expectations were diminished.  It is significant that

the Nollans had notice of the easement before they purchased the

property, and that public use of the beach had been permitted for

decades.



For these reasons, I respectfully dissent. STEVENS, J., dissenting



JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.



The debate between the Court and JUSTICE BRENNAN illustrates an

extremely important point concerning government regulation of the use of

privately owned real estate.  Intelligent, well-informed public

officials may in good faith disagree about the validity of specific

types of land use regulation.  Even the wisest lawyers would have to

acknowledge great uncertainty about the scope of this Court's takings

jurisprudence.  Yet, because of the Court's remarkable ruling in First

English Evangelical Lutheran Church of Glendale v. Los Angeles County,

482 U.S. 304 (1987), local governments and officials must pay the price

for the necessarily vague standards in this area of the law.



In his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S.

621 (1981), JUSTICE BRENNAN proposed a brand new constitutional rule.* 

He argued that a mistake such as the one that a majority of the Court

believes that the California Coastal Commission made in this case should

automatically give rise to pecuniary liability for a "temporary taking."

 Id. at   Notwithstanding the unprecedented chilling effect that such a

rule will obviously have on public officials charged with the

responsibility for drafting and implementing regulations designed to

protect the environment [483 U.S. 867] and the public welfare, six

Members of the Court recently endorsed JUSTICE BRENNAN's novel proposal.

 See First English Evangelical Lutheran Church, supra.



I write today to identify the severe tension between that dramatic

development in the law and the view expressed by JUSTICE BRENNAN's

dissent in this case that the public interest is served by encouraging

state agencies to exercise considerable flexibility in responding to

private desires for development in a way that threatens the preservation

of public resources.  See ante at   I like the hat that JUSTICE BRENNAN

has donned today better than the one he wore in San Diego, and I am

persuaded that he has the better of the legal arguments here.  Even if

his position prevailed in this case, however, it would be of little

solace to land use planners who would still be left guessing about how

the Court will react to the next case, and the one after that.  As this

case demonstrates, the rule of liability created by the Court in First

English is a shortsighted one.  Like JUSTICE BRENNAN, I hope that "a

broader vision ultimately prevails."  Ante at 864. I respectfully

dissent. Footnotes SCALIA, J., lead opinion (Footnotes)



1. The holding of PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), is not inconsistent with this analysis, since there the owner

had already opened his property to the general public, and in addition

permanent access was not required.  The analysis of Kaiser Aetna v.

United States, 444 U.S. 164 (1979), is not inconsistent, because it was

affected by traditional doctrines regarding navigational servitudes.  Of

course neither of those cases involved, as this one does, a classic

right-of-way easement.



2. JUSTICE BRENNAN also suggests that the Commission's public

announcement of its intention to condition the rebuilding of houses on

the transfer of easements of access caused the Nollans to have "no

reasonable claim to any expectation of being able to exclude members of

the public" from walking across their beach.  Post at   He cites our

opinion in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), as support

for the peculiar proposition that a unilateral claim of entitlement by

the government can alter property rights.  In Monsanto, however, we

found merely that the Takings Clause was not violated by giving effect

to the Government's announcement that application for "the right to

[the] valuable Government benefit," id. at 1007 (emphasis added), of

obtaining registration of an insecticide would confer upon the

Government a license to use and disclose the trade secrets contained in

the application.    See also Bowen v. Gilliard, ante at 605.  But the

right to build on one's own property -- even though its exercise can be

subjected to legitimate permitting requirements -- cannot remotely be

described as a "governmental benefit."  And thus the announcement that

the application for (or granting of) the permit will entail the yielding

of a property interest cannot be regarded as establishing the voluntary

"exchange," 467 U.S. at 1007, that we found to have occurred in

Monsanto.  Nor are the Nollans' rights altered because they acquired the

land well after the Commission had begun to implement its policy.  So

long as the Commission could not have deprived the prior owners of the

easement without compensating them, the prior owners must be understood

to have transferred their full property rights in conveying the lot.



3. Contrary to JUSTICE BRENNAN's claim, post at 843, our opinions do not

establish that these standards are the same as those applied to due

process or equal protection claims.  To the contrary, our verbal

formulations in the takings field have generally been quite different. 

We have required that the regulation "substantially advance" the

"legitimate state interest" sought to be achieved, Agins v. Tiburon, 447

U.S. 255, 260 (1980), not that "the State `could rationally have

decided' that the measure adopted might achieve the State's objective." 

Post at 843, quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 466 (1981).  JUSTICE BRENNAN relies principally on an equal

protection case, Minnesota v. Clover Leaf Creamery Co., supra, and two

substantive due process cases, Williamson v. Lee Optical of Oklahoma,

Inc., 348 U.S. 483, (1955), and DayBrite Lighting, Inc. v. Missouri, 342

U.S. 421, 423 (1952), in support of the standards he would adopt.  But

there is no reason to believe (and the language of our cases gives some

reason to disbelieve) that, so long as the regulation of property is at

issue, the standards for takings challenges, due process challenges, and

equal protection challenges are identical, any more than there is any

reason to believe that, so long as the regulation of speech is at issue,

the standards for due process challenges, equal protection challenges,

and First Amendment challenges are identical.  Goldblatt v. Hempstead,

369 U.S. 590 (1962), does appear to assume that the inquiries are the

same, but that assumption is inconsistent with the formulations of our

later cases.



4. If the Nollans were being singled out to bear the burden of

California's attempt to remedy these problems, although they had not

contributed to it more than other coastal landowners, the State's

action, even if otherwise valid, might violate either the incorporated

Takings Clause or the Equal Protection Clause.  One of the principal

purposes of the Takings Clause is to bar Government from forcing some

people alone to bear public burdens which, in all fairness and justice,

should be borne by the public as a whole. Armstrong v. United States,

364 U.S. 40, 49 (1960); see also San Diego Gas & Electric Co. v. San

Diego, 450 U.S. 621, 656 (1981) (BRENNAN, J. dissenting); Penn Central

Transportation Co. v. New York City, 438 U.S. 104, 123 (1978).  But that

is not the basis of the Nollans' challenge here.



5.  One would expect that a regime in which this kind of leveraging of

the police power is allowed would produce stringent land use regulation

which the State then waives to accomplish other purposes, leading to

lesser realization of the land use goals purportedly sought to be served

than would result from more lenient (but nontradeable) development

restrictions.  Thus, the importance of the purpose underlying the

prohibition not only does not justify the imposition of unrelated

conditions for eliminating the prohibition, but positively militates

against the practice.



6.  As JUSTICE BRENNAN notes, the Commission also argued that the

construction of the new house would "`increase private use immediately

adjacent to public tidelands,'" which in turn might result in more

disputes between the Nollans and the public as to the location of the

boundary.  Post 851, quoting App. 62.  That risk of boundary disputes,

however, is inherent in the right to exclude others from one's property,

and the construction here can no more justify mandatory dedication of a

sort of "buffer zone" in order to avoid boundary disputes than can the

construction of an addition to a single-family house near a public

street.  Moreover, a buffer zone has a boundary as well, and unless that

zone is a "no-man's land" that is off-limits for both neighbors (which

is, of course, not the case here) its creation achieves nothing except

to shift the location of the boundary dispute further on to the private

owner's land.  It is true that, in the distinctive situation of the

Nollans' property, the seawall could be established as a clear

demarcation of the public easement.  But since not all of the lands to

which this land use condition applies have such a convenient reference

point, the avoidance of boundary disputes is, even more obviously than

the others, a made-up purpose of the regulation. BRENNAN, J., dissenting

(Footnotes)



1.  See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,

(1955) ("[T]he law need not be in every respect logically consistent

with its aims to be constitutional.  It is enough that there is an evil

at hand for correction, and that it might be thought that the particular

legislative measure was a rational way to correct it"); Day-Brite

Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) ("Our recent

decisions make it plain that we do not sit as a super-legislature to

weigh the wisdom of legislation, nor to decide whether the policy which

it expresses offends the public welfare. . . .  [S]tate legislatures

have constitutional authority to experiment with new techniques; they

are entitled to their own standard of the public welfare").



Notwithstanding the suggestion otherwise, ante at  n. 3, our standard

for reviewing the threshold question whether an exercise of the police

power is legitimate is a uniform one.  As we stated over 25 years ago in

addressing a takings challenge to government regulation: The term

"police power" connotes the time-tested conceptional limit of public

encroachment upon private interests.  Except for the substitution of the

familiar standard of "reasonableness," this Court has generally

refrained from announcing any specific criteria.  The classic statement

of the rule in Lawton v. Steele, 152 U.S. 133, 137 (1894), is still

valid today: . . . [I]t must appear, first, that the interests of the

public . . . require [government] interference; and, second, that the

means are reasonably necessary for the accomplishment of the purpose,

and not unduly oppressive upon individuals. Even this rule is not

applied with strict precision, for this Court has often said that

"debatable questions as to reasonableness are not for the courts, but

for the legislature. . . ."  E.g., Sproles v. Binford, 286 U.S. 374, 388

(1932). Goldblatt v. Hempstead, 369 U.S. 590, 594-595 (1962).  See also

id. at 596 (upholding regulation from takings challenge with citation

to, inter alia, United States v. Carolene Products Co., 304 U.S. 144,

154 (1938), for proposition that exercise of police power will be upheld

if "any state of facts, either known or which could be reasonably

assumed, affords support for it").  In Connolly v. Pension Benefit

Guaranty Corporation, 475 U.S. 211 (1986), for instance, we reviewed a

takings challenge to statutory provisions that had been held to be a

legitimate exercise of the police power under due process analysis in

Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U.S. 717

(1984).  Gray, in turn, had relied on Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1 (1976).  In rejecting the takings argument that the

provisions were not within Congress' regulatory power, the Court in

Connolly stated: Although both Gray and Turner Elkhorn were due process

cases, it would be surprising indeed to discover now that, in both

cases, Congress unconstitutionally had taken the assets of the employers

there involved. 475 U.S. at 223.  Our phraseology may differ slightly

from case to case -- e.g., regulation must "substantially advance,"

Agins v. Tiburon, 447 U.S. 255, 260 (1980), or be "reasonably necessary

to," Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127

(1978), the government's end.  These minor differences cannot, however,

obscure the fact that the inquiry in each case is the same.



Of course, government action may be a valid exercise of the police power

and still violate specific provisions of the Constitution.  JUSTICE

SCALIA is certainly correct in observing that challenges founded upon

these provisions are reviewed under different standards.  Ante at  n. 3.

 Our consideration of factors such as those identified in Penn Central,

supra, for instance, provides an analytical framework for protecting the

values underlying the Takings Clause, and other distinctive approaches

are utilized to give effect to other constitutional provisions.  This is

far different, however, from the use of different standards of review to

address the threshold issue of the rationality of government action.



2. As this Court declared in United States v. Riverside Bayview Homes

Inc., 474 U.S. 121, 127 (1985): A requirement that a person obtain a

permit before engaging in a certain use of his or her property does not

itself "take" the property in any sense:  after all, the very existence

of a permit system implies that permission may be granted, leaving the

landowner free to use the property as desired.  Moreover, even if the

permit is denied, there may be other viable uses available to the owner.

 Only when a permit is denied and the effect of the denial is to prevent

"economically viable" use of the land in question can it be said that a

taking has occurred. We also stated in Kaiser Aetna v. United States,

444 U.S. 164, 179 (1979), with respect to dredging to create a private

marina: We have not the slightest doubt that the Government could have

refused to allow such dredging on the ground that it would have impaired

navigation in the bay, or could have conditioned its approval of the

dredging on petitioners' agreement to comply with various measures that

it deemed appropriate for the promotion of navigation.



3. The list of cases cited by the Court as support for its approach,

ante at  includes no instance in which the State sought to vindicate

preexisting rights of access to navigable water, and consists

principally of cases involving a requirement of the dedication of land

as a condition of subdivision approval.  Dedication, of course, requires

the surrender of ownership of property, rather than, as in this case, a

mere restriction on its use.  The only case pertaining to beach access

among those cited by the Court is MacKall v. White, 85 App.Div.2d 696,

445 N.Y.S.2d 486 (1981).  In that case, the court found that a

subdivision application could not be conditioned upon a declaration that

the landowner would not hinder the public from using a trail that had

been used to gain access to a bay.  The trail had been used despite

posted warnings prohibiting passage, and despite the owner's resistance

to such use.  In that case, unlike this one, neither the State

Constitution, state statute, administrative practice, nor the conduct of

the landowner operated to create any reasonable expectation of a right

of public access.



4.  This may be because the State, in its briefs and at argument,

contended merely that the permit condition would serve to preserve

overall public access by offsetting the diminution in access resulting

from the project, such as, inter alia, blocking the public's view of the

beach.  The State's position no doubt reflected the reasonable

assumption that the Court would evaluate the rationality of its exercise

of the police power in accordance with the traditional standard of

review, and that the Court would not attempt to substitute its judgment

about the best way to preserve overall public access to the ocean at the

Faria Family Beach Tract.



5. As the Commission's Public Access (Shoreline) Interpretative

Guidelines state: [T]he provision of lateral access recognizes the

potential for conflicts between public and private use and creates a

type of access that allows the public to move freely along all the

tidelands in an area that can be clearly delineated and distinguished

from private use areas. . . .  Thus the "need" determination set forth

in P[ublic] R[esources] C[ode] 30212(a)(2) should be measured in terms

of providing access that buffers public access to the tidelands from the

burdens generated on access by private development. App. 358-359.



6. The Court suggests that the risk of boundary disputes "is inherent in

the right to exclude others from one's property," and thus cannot serve

as a purpose to support the permit condition.  Ante at 839, n. 6.  The

Commission sought the deed restriction, however, not to address a

generalized problem inherent in any system of property, but to address

the particular problem created by the shifting high-tide line along

Faria Beach.  Unlike the typical area in which a boundary is delineated

reasonably clearly, the very problem on Faria Beach is that the boundary

is not constant.  The area open to public use therefore is frequently in

question, and, as the discussion supra demonstrates, the Commission

clearly tailored its permit condition precisely to address this specific

problem.



The Court acknowledges that the Nollans' seawall could provide "a clear

demarcation of the public easement," and thus avoid merely shifting "the

location of the boundary dispute further on to the private owner's

land."  Ibid.  It nonetheless faults the Commission because every

property subject to regulation may not have this feature.  This case,

however, is a challenge to the permit condition as applied to the

Nollans' property, so the presence or absence of seawalls on other

property is irrelevant.



7. See, e.g., Bellefontaine Neighbors v. J. J. Kelley Realty & Bldg.

Co., 460 S.W.2d 298 (Mo.Ct.App.1970); Allen v. Stockwell, 210 Mich. 488,

178 N.W. 27 (1920).  See generally Shultz & Kelley, Subdivision

Improvement Requirements and Guarantees:  A Primer, 28 Wash.U.J.Urban

and Contemp.L. 3 (1985).



8. The Commission acted in accordance with its Guidelines both in

determining the width of the area of passage and in prohibiting any

recreational use of the property.  The Guidelines state that it may be

necessary on occasion to provide for less than the normal 25-foot-wide

accessway along the dry sand when this may be necessary to "protect the

privacy rights of adjacent property owners."  App. 363.  They also

provide this advice in selecting the type of public use that may be

permitted: Pass and Repass.  Where topographic constraints of the site

make use of the beach dangerous, where habitat values of the shoreline

would be adversely impacted by public use of the shoreline or where the

accessway may encroach closer than 20 feet to a residential structure,

the accessway may be limited to the right of the public to pass and

repass along the access area.  For the purposes of these guidelines,

pass and repass is defined as the right to walk and run along the

shoreline.  This would provide for public access along the shoreline but

would not allow for any additional use of the accessway.  Because this

severely limits the public's ability to enjoy the adjacent state owned

tidelands by restricting the potential use of the access areas, this

form of access dedication should be used only where necessary to protect

the habitat values of the site, where topographic constraints warrant

the restriction, or where it is necessary to protect the privacy of the

landowner. Id. at 370.



9.  At the time of the Nollans' permit application, 43 of the permit

requests for development along the Faria Beach had been conditioned on

deed restrictions ensuring lateral public access along the shoreline. 

App. 48.



10. The Court suggests that Ruckelshaus v. Monsanto is distinguishable,

because government regulation of property in that case was a condition

on receipt of a "government benefit," while here regulation takes the

form of a restriction on "the right to build on one's own property,"

which "cannot remotely be described as a `government benefit.'"  Ante at

834, n. 2.  This proffered distinction is not persuasive.  Both Monsanto

and the Nollans hold property whose use is subject to regulation;

Monsanto may not sell its property without obtaining government

approval, and the Nollans may not build new development on their

property without government approval.  Obtaining such approval is as

much a "government benefit" for the Nollans as it is for Monsanto.  If

the Court is somehow suggesting that "the right to build on one's own

property" has some privileged natural rights status, the argument is a

curious one.  By any traditional labor theory of value justification for

property rights, for instance, see, e.g., J. Locke, The Second Treatise

of Civil Government 15-26 (E. Gough, ed.1947), Monsanto would have a

superior claim, for the chemical formulae which constitute its property

only came into being by virtue of Monsanto's efforts.



11.  The Senior Lands Agent's report to the Commission states that,

based on my observations, presently, most, if not all of Faria Beach

waterward of the existing seawalls [lies] below the Mean High Tide

Level, and would fall in public domain or sovereign category of

ownership. App. 85 (emphasis added).



12. The Senior Lands Agent's report stated: Based on my past experience

and my investigation to date of this property, it is my opinion that the

area seaward of the revetment at 3822 Pacific Coast Highway, Faria

Beach, as well as all the area seaward of the revetments built to

protect the Faria Beach community, if not public owned, has been

impliedly dedicated to the public for passive recreational use. Id. at

86.



13. As the California Court of Appeal noted in 1985: Since 1972,

permission has been granted to construct more than 42,000 building units

within the land jurisdiction of the Coastal Commission.  In addition,

pressure for development along the coast is expected to increase, since

approximately 85% of California's population lives within 30 miles of

the coast. Grupe v. California Coastal Comm'n, 166 Cal.App.3d 148, 167,

n. 12, 212 Cal.Rptr. 578, 589, n. 12.  See also Coastal Zone Management

Act, 16 U.S.C.  1451(c) (increasing demands on coastal zones "have

resulted in the loss of living marine resources, wildlife, nutrient-rich

areas, permanent and adverse changes to ecological systems, decreasing

open space for public use, and shoreline erosion").



14.  I believe that States should be afforded considerable latitude in

regulating private development, without fear that their regulatory

efforts will often be found to constitute a taking.   "if . . .

regulation denies the private property owner the use and enjoyment of

his land and is found to effect a `taking,'" however, I believe that

compensation is the appropriate remedy for this constitutional

violation.  San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 656

(1981) (BRENNAN, J., dissenting) (emphasis added).  I therefore see my

dissent here as completely consistent with my position in First English

Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S.

304 (1987). STEVENS, J., dissenting (Footnotes)



* The constitutional rule I propose requires that, once a court finds

that a police power regulation has effected a "taking," the government

entity must pay just compensation for the period commencing on the date

the regulation first effected the "taking," and ending on the date the

government entity chooses to rescind or otherwise amend the regulation.

450 U.S. at 658.

