High Court to Decide Beach Access Question : Ventura Homeowner Challenging Coast Panel’s Rule Keeping Private Frontage Open to Public

The view from Patrick Nollan’s back porch is hard to match. The waves break gently on the sand just 50 feet away. Sunlight gleams off the Pacific and, in the distance, the islands rise out of the offshore mist.

This narrow strip of beach and the view that goes with it brought Nollan and his family here in 1982. To see the sun rise and set from this idyllic spot, he is willing to make a daily commute of 70 miles each way, to and from Los Angeles.

Nollan is hardly alone in appreciating the California coast. In 1972, the voters passed an initiative declaring the shoreline “a distinct and natural resource belonging to all the people.” The California Coastal Commission was set up to see to it that the beaches were kept open to all.

So who owns the beach between Nollan’s patio and the water?

His deed says he owns it, but the commission, in exchange for the permit allowing him to build a two-story house, says the public has the right to walk there.

Monday, this beach battle will be heard by the U.S. Supreme Court. The issue underlying the dispute reaches far beyond the fight over California’s coastline.

In the 1920s, the high court upheld the notion of zoning, concluding that some limits on the rights of private property owners are the necessary price of a “civilized society.”

The court also concluded, however, that a land-use regulation that “goes too far” violates the Constitution’s ban on the “taking” of private property.

Since then, the court has added little to that formulation. In several recent cases, the justices have not drawn a clear line separating a reasonable land-use policy from one that amounts to taking private property.

“This has been one of the two or three biggest issues before the court in this decade, and it gets bigger every year because they have been unable to resolve it,” said Benna Ruth Solomon, counsel for the State and Local Legal Center in Washington.

The Fifth Amendment says that “no person shall . . . be deprived of life, liberty or property without due process of law, nor shall private property be taken without just compensation.” Conservative legal scholars, as well as lawyers for developers and property owners such as Nollan, have been urging the high court to breathe new life into this constitutional clause.

They say that lower courts, particularly those in California, have permitted “extortion” and “grand theft” in the guise of land-use regulation.

They charge that local government agencies, hard-pressed to pay for public improvements, are forcing builders to pay for those improvements as a condition of being allowed to develop their property. They point to Los Angeles and San Francisco, where builders have been forced to pay for everything from sewers and roads to jogging tracks and art museums as a price of getting a building permit.

On the other side, lawyers for public agencies argue just as vehemently that the courts cannot turn back the clock to frontier times. In an increasingly urban society where development of one area squeezes another, the courts cannot hold to a rigid and pristine view of private property, they say.

The high court certainly seems interested in the debate. In four of the last five years, the justices have considered major property cases citing the “taking” issue, but jurisdictional problems kept them from being resolved. Last month, the justices also agreed to hear an appeal from apartment owners in San Jose who said that the city’s rent control law was a taking of their property.

Claims Seizure of Land

In this court term, the attention is focused on Patrick Nollan’s beachfront. He and his attorneys say the state has taken a third of his property.

“If the state can just take your property, I think that’s wrong. It’s a basic issue of fairness,” said Nollan, a deputy city attorney in Los Angeles, sitting on his patio. “The way I read the Fifth Amendment, if the public wants the property, it has to pay for it.”

When the Nollans decided in 1982 to tear down a cottage on their lot and replace it with a three-bedroom house, Coastal Commission officials said they must sign a deed restriction giving the public the right “to pass and repass” on the dry, sandy beach in front of their home.

By common law dating back to Roman times, the public owns the shoreline up to the mean high tide line. In California and most other states, however, the dry portion of beach above the high water mark can be privately owned.

Nollan contested the deed restriction, first in a hearing before the Coastal Commission and then in state courts. Two courts differed on whether building a larger house on the same property was a development that should keep the public off the beach.

A court in Ventura, ruling for Nollan, said it was not. “The commission may constitutionally require a grant of public access only when the facts in the case before it demonstrate that a proposed development will place a burden on the public access to the coast,” a judge said.

A state appeals court disagreed. It said that any development, no matter how small, can be seen as “one brick in a wall” between the public and the beach. The California Supreme Court upheld this decision.

Nollan’s attorneys say that, under this theory, government can do as it pleases any time someone wants to build on his property.

“The California courts have created a handy fiction which makes it possible for the state to acquire private property without paying for it,” said the Pacific Legal Foundation, which appealed Nollan’s case to the Supreme Court.

Officials of the Coastal Commission, not surprisingly, take an entirely different approach to the case. They begin with the premise that the public owns the shoreline and then ask whether any restrictions on property near it are “reasonable.”

“This is a very reasonable condition, when you consider they are building a structure on the immediate shoreline,” said Peter Douglas, executive director of the California Coastal Commission. “We are not taking their property. We are saying you have an obligation to share it with the public.” The Nollans bought their land knowing that development there was tightly regulated, he noted.

Just over half of California’s 1,087-mile coastline already is off limits to the public, either because it is privately owned or as part of a military reservation, according to commission officials.

Douglas said the requirement imposed on the Nollans is essentially the same as that applied to most owners who must allow local government to build a sidewalk across their front yards.

Case-by-Case Premise

Douglas and attorneys for the state are worried that the high court will adopt the theory used by the Ventura court--that the government must prove in each case that the development will harm the beach before it can impose any condition on the developer.

House Poses Dilemma

While it is clear that mass development changes the character of a beach, it is hard to show that one additional house creates a problem, Douglas said.

The building of a string of homes along the beach, as is the case in Ventura, is “radically changing the character of the area and creating an unbroken wall between the public and its tidelands,” says one brief supporting the Coastal Commission. “In some areas of California and elsewhere along our nation’s coast, one can drive for miles without realizing that the ocean is in the backyards of a string of homes.”

How can the state prove that one house is the culprit, Douglas asks. “Let’s say you wanted to protect a meadow. You might be able to tuck one house here or there and not harm it, but what about 10 or 15 or 50? It would be virtually impossible to prove in each instance that one additional house had a direct, adverse impact.”

If the Nollans prevail, he added, “This case will likely have major ramifications for every state and local government in this country.”

Fearing just that, the National Governors’ Assn., the National Conference of State Legislatures, the National League of Cities and the National Assn. of Counties have filed a brief in support of the Coastal Commission.

This “challenge threatens the fundamental ability of state and local governments to condition approvals of developments that intensify use of land on dedication requirements that will avoid or ameliorate the adverse impact of the development,” they told the high court. “Requiring compliance with set-back and height restrictions or the dedication of land for schools, parks, open space, streets, sidewalks and other public purposes not only contributes greatly to the quality of life in our communities but is a familiar and constitutional exercise.”

Conservative legal scholars counter that the Constitution protects the rights of individuals, not a government right to do whatever it believes is in the majority’s interest.

University of Chicago law professor Richard Epstein complained that many courts simply ignore the Fifth Amendment as an inconvenient restriction on government.

“These people want to make a perfectly ordinary use of their property--to build a house. And the state says, we will give you one use of your property in exchange for the use of another part of your property,” said Epstein, author of several books on the “taking” issue.

The Supreme Court is expected to make a decision in Nollan vs. California Coastal Commission (86-133) by July.