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Court to Decide State’s Beach Access Issue

Friend-of-the-court briefings will be filed Friday with the U.S. Supreme Court in a Ventura County case that could have a broad impact on California’s coastal communities and might also affect key land-use issues in the nation’s interior.

The case, Nollan vs. California Coastal Commission, involves the government’s ability to demand that property owners allow the public access to their lands.

Plaintiffs James and Marilyn Nollan, owners of a beach-front lot in Ventura, had asked the Coastal Commission for a permit in 1982 to knock down a run-down, 521-square-foot bungalow on the site and erect a two-story, 2,464-square-foot home.

The commission said it would only grant the permit if the Nollans agreed to a deed restriction that would allow the public to have access to the beach in front of the property.

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Public Access to Beach

The commission, formed in 1972, has the power to demand such “dedications” from owners who want to develop their beach-front property or make changes to existing structures. By doing so, the agency has tried to assure that the projects won’t block the public’s access to beaches.

The Nollans, however, claim that being forced to make such dedications in order to get a building permit violates the Fifth Amendment. That amendment forbids the taking of property for public use without just compensation.

Arguments in the case will begin early next year, and a ruling is expected by summer.

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The high court’s decision will have only statewide ramifications if the justices confine themselves to the merits of the Nollan case, most legal experts say.

But the ruling could have nationwide impact if the court chooses to examine the much broader issue of how much the government can demand from a builder before a project is approved.

Saved State Millions

“The real question is what kind of conditions can government agencies attach to the issuance of permits,” Michael Berger, a prominent Santa Monica attorney who has been involved in similar cases, said in an interview.

Supporters of the government’s ability to demand dedications say it has allowed the state to acquire millions of dollars worth of property for virtually nothing. Millions more have been made available to improve public property.

For example, plans for the sprawling, $125-million Colony at Mandalay Beach resort community in Oxnard were approved a few years ago only after the developers agreed to dedicate 36 acres of beach-front property, valued at $50 million, to the state.

The builders also spent $2 million on improvements, including the addition of a walkway, bike path and parking lot. Thousands of people now use the area daily.

Claim Unjust Taking

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But many large developers--as well as families like the Nollans--complain that dedications are an unjust taking of their property. Commercial developers also note that the dedications tend to drive up the cost of their projects, and that those costs are usually passed along to people who buy homes in their developments or use on-site facilities, such as restaurants and hotels.

A wide-ranging decision in favor of the Nollans would certainly affect the Coastal Commission’s operations. But it could also deal a severe blow to the growing number of municipalities across the nation that require builders to earmark portions of their land--or donate money--for public use before they can obtain a building permit.

For example, some local governments demand that developers set aside space in their projects for low- and moderate-income housing or reserve a portion of the property as undeveloped open space. Others require developers to build or fund child-care and transit facilities, parks and other items.

State courts usually have upheld such requirements, even when developers argue that their project alone won’t increase the demand for public services. Judges have reasoned that the cumulative impact of the project, when combined with other developments, creates the demand.

‘Worst-Case Scenario’

Cities and states may lose their ability to make such demands if the high court rules such actions are unconstitutional.

“In the worst-case scenario, the court would rule that the government has to pay owners for property that will be used by the public,” says Jamee Jordan Patterson, a lawyer in the California Attorney General’s office. “The government just doesn’t have the money to pay for that land.”

As a result, Patterson says, the government would have to raise taxes to buy property in the future, acquire less land for public use or raise builders’ fees.

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“It would be a no-win situation,” she says.

One argument the government will present in its defense, Patterson says, is that requiring a developer to allow the public access to a portion of his land is a fair exchange for giving him the right to “burden” the community with more development and the resulting increase in traffic and the need for public services.

Owners Built House

The government also will ask the court to dismiss the suit altogether because the Nollans went ahead and built the house, even though the case already had gone to trial.

Patterson says California law generally holds that a person who builds must meet the conditions of a permit, and gives up the right to sue over those conditions after construction has begun.

“What really galls me is that the public already has the right to use . . . shoreline,” Patterson says. She says the Nollans’ new home blocks the view of the beach from the highway, which discourages people from using the beach in front of the house. “It also makes driving a lot less pleasant because the view is obstructed,” she adds.

The Nollans are being represented by the Pacific Legal Foundation, a conservative group based in Sacramento that often gets involved in property-rights cases.

Tim Bittle, a foundation lawyer who is working on the Nollan case, says the Coastal Commission is trying to deny the couple their constitutional rights.

“The Nollans wanted to do nothing more than replace an old, dilapidated house with a new house in conformance with all the zoning and building restrictions on the lot,” Bittle says. “They didn’t want to do anything illegal.

Fifth Amendment Cited

“In return, the California Coastal Commission has asked them to (let the public use) a third of the sandy beach in front of their house without any compensation whatsoever. And that’s a violation of the Fifth Amendment.”

Bittle disagrees with legal experts who claim a decision favoring the Nollans would have nationwide ramifications. He feels a Nollan victory would probably only affect property owners in California because most other states aren’t as liberal when it comes to taking land for public use.

However, he adds, a decision in favor of the Coastal Commission would have a much broader impact.

“If the state wins this case, the other 49 states will sit up and take notice,” Bittle says. “The precedent wouldn’t be limited to the beaches.”

Could Lead to Excess

Theoretically, Bittle says, a ruling for the Coastal Commission could eventually allow any local government that wanted a site for a new park, road or city hall to take all or part of a property owner’s land whenever the owner needed a permit.

“If the government wanted your property, it could set up any permit scheme it wanted to,” Bittle says. “It could require you to get a permit just to build a fire in your fireplace, and then it could take away your property when you went down to get the permit.”

The attorney admits that such a scenario is “stretching things a bit.” But, he adds, “it is a possibility.”

The California Assn. of Realtors is among those filing friend-of-the-court briefs on behalf of the Nollans. The National Assn. of Attorney Generals and the California League of Cities are among those filing in support of the Coastal Commission.

No Clear-Cut Winners

There will be no clear-cut winners in this case, regardless of the decision the Supreme Court eventually hands down.

Although a victory by the Nollans might be perceived as a victory for developers, it could also wind up crimping future development activity.

Patterson, the attorney defending the Coastal Commission, says the state may have to reduce the number of building permits it issues if it has to begin paying builders for the public’s use of their property. Or, builders’ fees could skyrocket if the government decides that it doesn’t want to raise taxes to fund future land purchases.

A decision in favor of the Coastal Commission, on the other hand, would mean more beach access for 24 million Californians. But it might also be a blow to individual property rights--a cornerstone of the Constitution which some scholars say is slowly being eroded by the actions of government entities.

“The same 24 million Californians should be just as interested in having a legal system that protects their individual rights,” Bittle says. “The Nollans aren’t the only ones with a stake in this case. It’s their next-door neighbors, and the people down the road, and anybody else who owns a piece of property.”


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