U.S. Supreme Court Nollan v. California Coastal Comm'n, 483
U.S. 825 (1987) 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. Pp. 483 U. S.
831 -837.

															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 Page 483 U. S. 826 cannot compel coastal residents alone to contribute to the
realization of that goal. Pp. 483 U. S.
838 -842. 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 p. 483 U. S. 842 .
BLACKMUN, J., filed a dissenting opinion, post p. 483 U. S. 865 .
STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J.,
joined, post p. 483 U. S.
866 . Page 483 U. S. 827 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. Page 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 Page 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 Page 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 Page 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 483 U. S.
848 -849, 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 , 458 U. S. 433 (1982), quoting Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 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 458 U. S.
432 -433, 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 Page 483 U. S. 832 benefit or has only minimal economic impact on the owner," id. at 458 U. S.
434 -435. 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. [ Footnote 1 ]

															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 483 U. S.
847 -848, see also post at 483 U. S. 855 , 483 U. S. 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 Page 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 483 U. S. 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 , 447 U. S. 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). [ Footnote
2 ] Page 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 , 447 U. S. 260 (1980). See also Penn Central Transportation Co. v. New York
City, 438 U. S. 104 , 438 U. S. 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. [ Footnote 3 ] They have made clear, however, that a Page 483 U. S.
835 broad range of governmental purposes and regulations
satisfies these requirements. See Agins v. Tiburon, supra, at 447 U. S.
260 -262 (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)
[ Footnote 4 ] would
substantially impede these purposes, Page 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 Page 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 458 U. S. 439 ,
n. 17. [ Footnote 5 ] Page 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 Page 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. [ Footnote 6 ]
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); Page 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 483 U. S.
849 -850. 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 Page 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 483 U. S. 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," Page 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. [ Footnote 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.

															[ Footnote 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 483 U. S.
857 -860. 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 467 U. S.
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. Id. at 467 U. S.
1007 -1008. See also Bowen v. Gilliard, ante at 483 U. S. 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 467 U. S.
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.

															[ Footnote 3 ]

															Contrary to JUSTICE BRENNAN's claim, post at 483 U. S. 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 , 447 U. S. 260 (1980), not that "the State could rationally have
decided ' that the measure adopted might achieve the State's
objective." Post at 483 U. S. 843 ,
quoting Minnesota v. Clover Leaf
Creamery Co. , 449 U. S. 456 , 449 U. S. 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 , 348 U. S.
487 -488 (1955), and DayBrite Lighting, Inc. v.
Missouri, 342 U. S. 421 , 342 U. S. 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. [ Footnote 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 , 364 U. S. 49 (1960); see also San Diego Gas & Electric Co. v. San
Diego, 450 U. S. 621 , 450 U. S. 656 (1981) (BRENNAN, J. dissenting); Penn Central Transportation
Co. v. New York City, 438 U. S. 104 , 438 U. S. 123 (1978). But that is not the basis of the Nollans' challenge
here.

															[ Footnote 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.

															[ Footnote 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 483 U. S. 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. 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 Page 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 , 449 U. S. 466 (1981) (emphasis in original). [ Footnote 2/1 ] In this case, California has Page 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 Page 483 U. S. 845 the Nollans' request for a development permit, since the
property would have remained economically viable without the
requested new development. [ Footnote
2/2 ] 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 Page 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 , 286 U. S. 388 (1932). Cf. Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470 , 480 U. S. 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 274 U. S. 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 Page 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 Page 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 483 U. S. 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. [ Footnote 2/3 ] Page 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 Page 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.
[ Footnote 2/4 ] 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 Page 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 Page 483 U. S. 852 enjoyment of that right. [ Footnote
2/5 ] 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. [ Footnote
2/6 ] Page 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 , 260 U. S. 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 438 U. S. 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 Page 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. [ Footnote 2/7 ]
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. [ Footnote 2/8 ] As this Court made Page 483 U. S. 855 clear in PruneYard Shopping Center v. Robins, 447 U. S. 74 , 447 U. S. 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 483 U. S.
847 -848 (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 Page 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 260 U. S. 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. [ Footnote 2/9 ] 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. Page 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 , 444 U. S. 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 , 389 U. S. 295 (1967) (Stewart, J., concurring). See also Borax Consolidated,
Ltd. v. Los Angeles, 296 U. S. 10 , 296 U. S. 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 Page 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 Page 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." Id. at 467 U. S.
1006 -1007. 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 467 U. S.
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 444 U. S. 67 ,
quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 422 (Brandeis, J., dissenting). The deed restriction was "authorized by
law at the Page 483 U. S. 860 time of [appellants' permit] submission," Monsanto,
supra, at 467 U. S.
1007 , and, as earlier analysis demonstrates, supra, at 483 U. S.
849 -853, 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 467 U. S.
1005 . [ Footnote
2/10 ]

															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 Page 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. Page 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. [ Footnote 2/11 ] 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. [ Footnote 2/12 ] 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' Page 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. [ Footnote 2/13 ] As one scholar has noted:

															"Property does not exist in isolation. Particular parcels are
tied to one another in complex ways, and property is Page 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. [ Footnote 2/14 ]

															I dissent Page 483 U. S. 865 [ Footnote 2/1 ] See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 , 348 U. S.
487 -488 (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 , 342 U. S. 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 483 U. S.
834 -835, 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 , 152 U. S.
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 , 286 U. S.
388 (1932)." Goldblatt v. Hempstead, 369 U.
S. 590 , 369 U. S.
594 -595 (1962). See also id. at 369 U. S. 596 (upholding regulation from takings challenge with citation to, inter alia, United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 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 475 U. S. 223 .
Our phraseology may differ slightly from case to case -- e.g., regulation must "substantially advance," Agins
v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980), or be "reasonably necessary to," Penn Central
Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S. 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 483 U. S.
834 -835, 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.

															[ Footnote 2/2 ]

															As this Court declared in United States v. Riverside Bayview
Homes Inc., 474 U. S. 121 , 474 U. S. 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 , 444 U. S. 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."

															[ Footnote 2/3 ]

															The list of cases cited by the Court as support for its
approach, ante at 483 U. S. 839 -840, 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.

															[ Footnote 2/4 ]

															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.

															[ Footnote 2/5 ]

															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.

															[ Footnote 2/6 ]

															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 483 U. S. 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.

															[ Footnote 2/7 ] 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).

															[ Footnote 2/8 ]

															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.

															[ Footnote 2/9 ]

															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.

															[ Footnote 2/10 ]

															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 483 U. S. 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. [ Footnote 2/11 ]

															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).

															[ Footnote 2/12 ]

															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.

															[ Footnote 2/13 ]

															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").

															[ Footnote 2/14 ]

															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 , 450 U. S. 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). 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 , 449 U. S. 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, Page 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.

															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 450 U. S.
653 -661. 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 Page 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 483 U. S.
846 -848. 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 483 U. S.
864 .

															I respectfully dissent.

															*

															"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 450 U. S.
658 .

Summary: The California Coastal Commission granted a permit to the Nollans to rebuild their house on the condition that they allow a public easement on their beach. The Court ruled that while an outright taking of an uncompensated easement would violate the Takings Clause, conditioning permits on concessions can be a lawful land use regulation if it furthers governmental purposes. However, in this case, the Commission's imposition of the access easement condition was not a valid land use regulation as it did not serve public purposes related to the permit requirement. The Court reversed the State Court of Appeal's decision, holding that the Commission's justification for the access requirement was simply an expression of the belief that a continuous strip of publicly accessible beach served the public interest, which could not compel coastal residents to contribute to.