holding that the Fifth Amendment to the United States Constitution prevents a governmental body from conditioning the approval of a building permit on requirements imposed on the landowner unless there is a “nexus” between the requirements imposed and the interests that the governmental body would be properly protecting in denying the permit outright
How later courts described this case
- holding that the Fifth Amendment to the United States Constitution prevents a governmental body from conditioning the approval of a building permit on requirements imposed on the landowner unless there is a “nexus” between the requirements imposed and the interests that the governmental body would be properly protecting in denying the permit outright
- explaining that a Fifth Amendment taking by physical occupation occurs "where individuals are given a perma- nent 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"
- reasoning that since a requirement of an “uncompensated conveyance of the easement outright would violate the Fourteenth Amendment,” the conveyance of an easement as a condition for a permit also requires compensation unless there is an essential nexus between the legitimate state interest and the condition
- explaining that a “permanent physical occupation!’ occurs “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”
Written by the judges who cited it.
Later courts went against this
Disagreed with by Townes v. Commonwealth, 234 Va. 307 (1987)
481 U.S._, 107 S.Ct. 3141 (1987), and we reject it here.
Distinguished
Distinguished by St. Johns River Water Management District v. Koontz, 36 Fla. L. Weekly Supp. 623 (2011)
Our holding today is consistent with the 2011 decisions of two federal appellate courts, both of which held that Nollan and Dolan are inapplicable to cases that do not involve the dedication of real property for a public use.
Distinguished by Yu v. Signet Bank/Virginia, 126 Cal. Rptr. 2d 516 (2002)
S.Ct. 3141, 97 L.Ed.2d 677] [doctrine is inapplicable if record is changed in any substantial respect]), the new facts nevertheless do not alter our prior conclusion that Virginia had no personal jurisdiction over the Yus.
Distinguished by City of Kentwood v. Sommerdyke Estate, 458 Mich. 642 (1998)
We disagree with appellees’ contention that Nollan requires a contrary result.
Distinguished by Outdoor Systems, Inc. v. City of Mesa, 169 Ariz. 301 (1991)
Nollan, furthermore, is easily distinguishable because it did not involve a nonconforming use.
The opinion
*865 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 itp police power need be no more than rationally based. See, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 466 (1981). In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public, access to the beach. Coastal development by its very nature makes public access to the shore generally more difficult. Appellants’ structure is part of that general development and, in particular, it diminishes the public’s visual access to the ocean and decreases the public’s sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants’ construction permitting public passage that ensures access along the beach.
Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, *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.