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Court Rejects State Rule on Beach Access : Says Officials Can't Force Homeowner to Open Shore to Public

June 27, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — The Supreme Court declared Friday that state officials had no right to force a Ventura homeowner to give the public access to the beach in front of his house, a ruling that calls into question some state and local requirements imposed on developers.

Under California law, the public has access rights to the state's shoreline. But before a government can order a builder to open his property to allow such access, it must show that his development made it impossible for the public to get to the shoreline, the justices said in a 5-4 decision that ended the court's 1986-87 term.

Government officials cannot simply decide that it would be a "good idea" for the public to have some use of private property, the justices said in ruling for Patrick and Marilyn Nollan of Ventura and against the California Coastal Commission.

'Must Pay for It'

If the state "wants an easement across the Nollans' property, it must pay for it," Justice Antonin Scalia said for the court.

The case focused on a 30-foot dry strip of sand between the water and the patio of Nollan's home in Ventura. In 1982, Nollan and his wife decided to knock down a cottage on their lot there and build a two-story, three-bedroom home.

In exchange for a building permit, the Coastal Commission said that the Nollans had to give the public the right "to pass and repass" on a portion of their property leading to the shoreline. Nollan, an assistant city attorney in Los Angeles, refused.

He filed suit in Superior Court and won. But a state Court of Appeal concluded that, because development in general keeps the public from the shoreline, any structure can be viewed as infringing on the public's right to use state beaches. The California Supreme Court upheld that ruling.

In rejecting this decision, Scalia included a slap at the state's courts.

"Every other court that has considered the question, with the exception of the California state courts," he said, has concluded that a state cannot set permit conditions that clearly exceed the burden imposed by a development.

Although the ruling is a victory for private property owners, it is not so sweeping as to throw out all types of zoning and land use regulations. Rather, the decision, combined with a ruling earlier this month, says that government officials may not casually force developers and property owners to meet extreme conditions in building on their land.

The earlier ruling, also involving a Los Angeles-area case, said that if a regulation deprives an owner of all use of his land, even temporarily, the government can be forced to pay him "just compensation" for his loss.

Jogging Paths, Art Centers

Neither decision draws a clear line between legitimate zoning and the illegal "taking" of private property. However, lawyers familiar with the rulings said that they appear to undercut strict regulations imposed on developers in San Francisco and Los Angeles that have required them to set aside land for jogging paths, art centers and day-care facilities in exchange for building permits.

Scalia said that the permit condition imposed on land owners must be closely linked to a legitimate government purpose, whether it is keeping the beach open to the public or limiting urban congestion.

If the beach-front development would keep the public from the shoreline, the state is justified in requiring the developer to create an access way for the public, Scalia suggested. But in this case, the Coastal Commission said only that Nollan's home created a "visual barrier" between the highway and the beach.

'Plan of Extortion'

"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,' " he wrote in the case (Nollan vs. California Coastal Commission, 86-133).

In the two rulings this year, the high court has given new strength to a somewhat ignored provision of the Fifth Amendment. It says that "private property (shall not) be taken for public use without just compensation."

Conservative academics and lawyers for developers have contended that many courts, especially those in California, have ignored this provision and given government bodies a free reign in setting land-use regulations.

However, lawyers for state and local governments, as well as for environmentalists, have contended just as vehemently that the court should not return the nation to the days when the rights of private property reigned supreme.

Brennan Dissents

In dissent from the latest ruling, Justice William J. Brennan Jr. said the court's "reasoning is hardly suited to the complex reality of natural resource protection in the 20th Century. I can only hope (it) is an aberration and that a broader vision ultimately prevails."

He said the ruling "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," adding that the ruling gives the Nollans "a windfall at the expense of the public."

He was joined by Justices Thurgood Marshall, Harry A. Blackmun and John Paul Stevens. Justice Lewis F. Powell Jr., who announced his resignation Friday, signed Scalia's opinion.

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